Ft. Worth & R. G. Ry. Co. v. Jones

• Decision Date: 28 January 1905
• Citation: 85 S.W. 37
• Parties: FT. WORTH & R. G. RY. CO. v. JONES.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

85 S.W. 37

FT. WORTH & R. G. RY. CO. v. JONES.^*

Court of Civil Appeals of Texas.

January 28, 1905.

Appeal from District Court, Erath County; W. J. Oxford, Judge.

Action by J. L. Jones against the Ft. Worth & Rio Grande Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

West, Chapman & West and Theodore Mack, for appellant. Riddle & Keith, for appellee.

CONNER, C. J.

The appellee instituted this suit to recover damages in the sum of $6,502.25, alleging, in substance, that appellee's wife had purchased a round-trip excursion ticket from Stephenville, Tex., to Exeter, Mo., which, according to its terms, was required to be presented to the agent at Exeter, and there signed, stamped, etc., before being honored for return passage; that the ticket was presented by appellee's wife to the agent at the terminal point, and she was by him informed that it was unnecessary for him to stamp it or for her to sign it, and he refused to require the identification and stamp the ticket as directed by the selling agent; that appellee's wife accordingly returned to Texas, each conductor en route honoring the ticket until she arrived at the city of Ft. Worth, at which place she took passage upon the proper train of appellant, and the conductor thereof refused to honor the ticket, and grossly insulted and humiliated appellee's wife, requiring her to pay a cash fare of $2.25 for her transportation from Ft. Worth to Stephenville; that said insults, etc., resulted in the damages sought. The appellant, among other things, filed a general denial, setting up the written contract embodied in the ticket, making it obligatory upon appellee's wife to present the ticket to the agent at Exeter for stamping and signature before it should be honored for return passage, and especially denying any rude or impolite conduct on the part of its conductor, and further specially alleged that, if the agent at Exeter made the statement to appellee's wife as alleged, it was about a matter beyond the scope of his authority, and did not relieve her of her contractual duty. The verdict of the jury was in appellee's favor for the cash fare, $2.25, and the further sum of $500 for the mental suffering occasioned by insulting and rude conduct of the conductor, and judgment was entered accordingly.

It is undisputed that appellee's wife purchased the ticket from Stephenville, Tex., to Exeter, Mo., containing stipulations for identification, etc., at terminal point, as alleged. We think the evidence also substantially establishes the fact that appellee's wife presented the ticket to the agent at Exeter for the purpose of stamping, signing, and identification, and that said agent refused to comply with the duty imposed upon him by the stipulation of the ticket, and that hence appellee's wife had the right to return upon the ticket. The law has been so well settled upon this branch of the case that we think it unnecessary to further discuss it. See Gulf, Colorado & Santa Fé Ry. Co. v. St. John, 13 Tex. Civ. App. 257, 35 S. W. 501, by this court, in which writ of error was refused; Missouri Pacific Railway Co. v. Martino (Tex. Civ. App.) 18 S. W. 1069; Id., 21 S. W. 781; Head v. Georgia R. Co., 79 Ga. 358, 7 S. E. 217, 11 Am. St. Rep. 434. We therefore think the court was authorized to submit the issues to the jury, and to receive the evidence of appellee's wife, as complained of in the first and second assignments, and that the verdict of the jury for the cash fare paid by appellee's wife was also supported by the evidence, from which it follows that the fourth and fifth assignments should be overruled.

We think the third and sixth assignments, complaining of the fourth paragraph of the court's charge in submitting the issue, and of the verdict of the jury in finding for appellee in the sum of $500, because there was "no evidence that plaintiff's wife suffered any humiliation, restraint, mortification, or mental anguish," should be overruled, for she testified, in substance, that, when called upon therefor, she presented the ticket to the conductor, who, after its examination, rudely threw it in her lap and declared that it was no good, and, in the presence of other passengers, denied the truth of her statement that she had presented the ticket to the agent at Exeter, and that the conductor's language and conduct very much humiliated her. It certainly cannot be reasonably said that this constitutes "no evidence" authorizing the submission of the issue, and the imposition of a verdict for damages.

We think, however, that there was error in the action of the court, as assigned in the seventh, eighth, and ninth assignments. While appellee's wife was testifying as a witness, she was permitted, over appellant's objection, to testify in answer to the indicated interrogatories as follows: (1) "The throwing of the ticket back into your lap, and telling you that it was no account, did that prey on your mind, or not?" To which the witness answered, "Yes, sir." (2) "I will ask you to state whether or not the conduct of the conductor there about this ticket, and the language he used to you, preyed on your mind?" To which the witness answered, "Yes." (3) Concerning her feelings at the time that the ticket was questioned by the conductor as to the validity, appellee's counsel questioned the witness as follows: "Q. Were you humiliated there? A. Yes, sir." The objections that were made to these interrogatories and answers were that the interrogatories were leading and suggestive. "Questions are objectionable, as leading, not only when they directly suggest the answer which is desired, but also when they embody a material fact, and admit of an answer by a simple negative or affirmative, though neither the one nor the other is directly suggestive." 2 Phillips on Evidence, 745; 1 Greenleaf on Evidence, § 434; Rapalje on Witnesses, § 241. The substantial, crucial fact in issue in this case was whether appellee's wife suffered mental distress or humiliation from the conduct of appellant's conductor, as alleged; and this fact seems clearly to be embodied in the interrogatories propounded, and to admit of an answer by a simple negative or affirmative, and hence leading, within the rule as announced in the above authorities. This aspect of the question, however, may possibly be affected by the modification of the common-law rule recognized by our Supreme Court in the case of Lott v. King, 79 Tex. 292, 15 S. W. 231, and noticed in the case of Railway Company v. Dalwigh, 92 Tex. 655, 51 S. W. 500. But if so, we see no answer to the further fact that the questions quoted put it in the power of the witness, by the simple answer given, to echo back the words of counsel, and to give a desired answer, in a desired form, upon the material point in the case, which, upon principle and authority must be held to be objectionable. See Railway Company v. Dalwigh, supra; San A. & A. P. Ry. Co. v. Hammon (Tex. Sup.) 50 S. W. 123, and authorities therein cited. We think the witness should have been required to state in her own language what, if any, effect the demeanor of the conductor, as she detailed it, had upon her. The answers of the witness, if credited, established the fact that the acts and words of the conductor "preyed upon her mind" and "humiliated her," and thus not only filled the legal requirements of appellee's case, but also tended to augment the recovery. These terms were selected by the learned counsel of appellee, embodied in the questions propounded, and echoed back by the witness. We have no means of knowing that the witness, had she been permitted to describe the effect of the conduct of the conductor in terms of her own, would have used terms of like force and effect. The witness alone, it seems to us, should be presumed to best know the effect upon her of the circumstances, and of the terms which will most accurately and fully describe such effect.

For the purpose of showing the force of the objections made, and of our comment upon the interrogatories and answers set out, we will further add that while appellee's wife testified that several other passengers were present, "both in front and behind her," none of such other passengers were called to testify in behalf of appellee, upon whom rested the burden of proof. She also testified, in addition to what we have heretofore stated, that: "When he [the conductor] first threw the ticket back in my lap, I told him that he was mad, and he said that he was not mad, that he knew anything about; and I told him that, if he was not mad, he was the crankiest man I ever saw. * * * Yes, sir; I was mad. He told me he wanted me to borrow the money, and I told him I would not borrow it. [Appellee's wife lacked five cents of having enough money to pay the cash fare demanded.] He was mad at me. No, sir; it is not a fact that I was the only person that was mad. I don't know whether he was mad or not, but, if he was not mad, he talked like he was mad. * * * I was mad enough to have hit him in the face, and told him so. I did not make any effort to hit him in the face. I only said that I only felt like striking him in the face." The conductor testified, in substance, that it was his duty, under the circumstances, to refuse to permit transportation on an unsigned ticket; and that this is true, under ordinary circumstances, is not disputed. He also denied all rudeness of manner.

It will be observed that, excluding the terms of counsel's selection, and embodied in the interrogatories quoted, the evidence of appellee's wife is susceptible of the construction that she was merely angry. Save in telegraph cases, damages for mental emotion of any kind is rarely allowed, when unaccompanied with physical pain or pecuniary loss, on the ground that such damages are uncertain and speculative; and the rule in telegraph cases is of comparatively recent origin, and by no means universally applied. Sutherland on Damages, § 977 et...