Ft. Worth & N. O. Ry. Co. v. Smith

• Decision Date: 21 March 1894
• Citation: 25 S.W. 1032
• Parties: FT. WORTH & N. O. RY. CO. v. SMITH.
• Court: Texas Court of Appeals

Page 1032

25 S.W. 1032

FT. WORTH & N. O. RY. CO. v. SMITH.

Court of Civil Appeals of Texas.

March 21, 1894.

Appeal from district court, Tarrant county; N. A. Stedman, Judge.

Action by J. W. Smith against Ft. Worth & New Orleans Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition plaintiff remits $1,000 from the judgment.

John D. Templeton, for appellant. Geo. Thompson and Ben M. Terrell, for appellee.

Statement of the Case, with Conclusions of Fact.

TARLTON, C. J.

The appellee, J. W. Smith, brought this suit September 25, 1891, against the Ft. Worth & New Orleans Railway Company and Charles Dillingham, receiver of the Houston & Texas Central Railway Company, as defendants. Under directions of the court, a verdict was returned in favor of the receiver, and the issues here presented concern exclusively appellee and the appellant railway company. The appellee sought to recover the sum of $20,000 as actual damages on account of the facts hereinbelow found, and which were alleged in his petition. A verdict and judgment for the sum of $2,000 were had by him against the Ft. Worth & New Orleans Railway Company; and hence this appeal.

In September, 1891, the appellee was in the peaceable possession, as he had been since the February before that date, of a certain section house in the city of Ft. Worth, which house was the property of the Missouri, Kansas & Texas Railway Company. He was in the employ of the latter company as a section foreman, and with his family, consisting of a wife and several children, occupied the house in question as a residence. The house was located about 200 yards south of the Union Depot in Ft. Worth, and near the west line of the track of the appellant company. As shown by the preponderance of the evidence, it was in part upon the right of way of the appellant, and partly off of it. About the 15th of September, 1891, a section foreman of the appellant company. with several hands under his control, acting under orders from the company, appeared with cars of dirt and rocks on the defendant's line of road in front of the residence of the appellee. He had been directed to "clean out a cut, and to dump the dirt in all holes that he could find in the right of way in Ft. Worth." In compliance with these orders, and in discharge of the task imposed upon him, the foreman and the men under him proceeded to fill in around a trestle and certain holes at the place indicated. In doing this they dumped large quantities of dirt, dust, and rocks upon and into the residence of the appellee; and, when he and the members of his family remonstrated against their manner of work, they persisted in their conduct, there being testimony to the effect that certain negro employés, working under the supervision of the foreman, shoveled dirt and rocks upon the house, threatening that they would "fill it clear to the roof." As a consequence, despite the efforts of the appellee to remove the dirt from his premises, it was blown into the house, and seriously damaged his carpets, and rocks were propelled into his rooms, injuring his furniture, and in some instances rendering it useless. The damages, however, to the property did not exceed $200, or about that sum. This course of conduct was continued by the defendant's employés at intervals for three days, and until the foreman was arrested. The family of the appellee suffered great inconvenience and harassment from the indignities thus offered, the wife especially. She became sick, and was compelled to resort to the services of a physician, but the sickness was not serious, and the expenditure for medical services was trifling

Opinion.

The second assignment of error, first relied upon by the appellant, contains two propositions, alleging error (1) in the action of the court in submitting to the jury the question of injury done to the house occupied by the appellee, and (2) in submitting the question of damage done to the property of the appellee which had been destroyed by the acts of appellant's servants. Each of these propositions must be overruled, because (1) the charge did not authorize the awarding of damages for injury done to the house, in which the appellee had no interest, and because (2) it was sufficiently averred and proved that some of the property of the appellee was in effect destroyed. Thus, it was alleged "that plaintiff at said times had valuable carpeting upon his floor, and many valuable pieces of furniture in his said residence, and that the same were almost destroyed and rendered unfit for use by said wrongful acts and injuries." The testimony of the appellee's witnesses sustained this allegation.

We think that mental suffering, growing out of the insults and indignities offered the plaintiff and his wife, and of the sickness of the latter, of which there is emphatic testimony in the record, can be considered as elements of actual damage in a case of this character; and we hence overrule appellant's third and fourth assignments of error, complaining of the submission by the court of such mental suffering for the...