Gulf, C. & S. F. Ry. Co. v. Nelson

• Decision Date: 04 September 1893
• Parties: GULF, C. & S. F. RY. CO. v. NELSON.
• Court: Texas Court of Appeals

24 S.W. 588

GULF, C. & S. F. RY. CO. v. NELSON.

Court of Civil Appeals of Texas.

September 4, 1893.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by J. M. Nelson against the Gulf, Colorado & Santa Fe Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Alexander & Clark and J. W. Terry, for appellant. T. F. Nash and Crawford & Crawford, for appellee.

RAINEY, J.

Appellee, plaintiff below, brought this suit against appellant, defendant below, to recover damages alleged to have been sustained by reason of injuries resulting from being wrongfully ejected by the conductor from a passenger train while in motion and being operated on appellant's road. Appellant answered, denying that appellee was ejected from said train, but, on account of his indecent language in the presence of ladies, he was removed from said train, and no more force used than was reasonably necessary for that purpose. Defendant propounded interrogatories to plaintiff, and sought to have his testimony taken, under article 2239, Rev. St. The same were duly placed in the hands of a proper officer, who endeavored to take same, but plaintiff refused to answer, which fact was duly certified to by the officer. Upon the trial, when the witness took the stand to testify in his own behalf, defendant objected to his testifying, because of his refusal to answer the interrogatories, and especially to his testifying in contradiction to interrogatories 6, 7, and 8 propounded by defendant; and requested that said three interrogatories betaken pro confesso. The objection was overruled, and plaintiff allowed to testify in reference to the matter contained in said three interrogatories, and generally about the case. It is not claimed that the other interrogatories were susceptible of being taken as confessed. Said sixth, seventh, and eighth interrogatories are as follows: "(6) After you left the fair grounds, and got on the train, is it not true that you were feeling the liquor you had been drinking? Is it not true that you were tight? Were you perfectly sober when you left the fair ground, and got on said train? If you were not perfectly sober, how drunk were you? (7) Is it not true that at the time said man came to you on the train, and demanded your fare, that you were talking in a loud and boisterous manner, and having a good time generally? If not true, state exactly how you were conducting yourself. Is it not true that when you are drinking, and are with the boys, — having a good time with the boys, — that you curse pretty freely? Is it not true that you had been using oaths in the car while you were carrying on with the boys, before the man ever asked you for your fare? Is it not true that the man you had the difficulty with first came up to you, and told you that there were ladies in the car, and that you must quit cursing and being boisterous? If not true, state when he did tell you this, and state exactly what he told you. Is it not true that you don't remember what he did tell you? Is it not true that you were so full of liquor that you were not in a condition to know exactly what you were doing, or what he or any one else said to you? Is it not true that you cursed said man? Is it not true that he told you he would have to get the conductor after you? Is it not true that you told him you were not afraid of him, or the conductor either, and that you were a `son of a bitch from hell?' If not true, state exactly what you did say. (8) Is it not true that the man who asked you to see your ticket insisted on your quitting being boisterous and cursing in the car where the ladies were? Is it not true that your difficulty with him was caused by your continuing to be boisterous and continuing to curse in the car where the ladies were? If not true, state the facts."

The statute provides that the testimony of either party to a suit may be taken upon interrogatories filed in the cause, without notice, etc. Rev. St. arts. 2239, 2240. Article 2243 provides: "If the party interrogated refuses to answer, the officer executing the commission shall certify such refusal, and any interrogatory which the party refuses to answer, or which he answers evasively, shall be taken as confessed." These provisions are plain. The mode prescribed therein for taking depositions was strictly pursued by defendant in trying to secure the deposition of plaintiff. The interrogatories 6, 7, and 8, propounded, are pertinent to the issues pleaded, and are so framed as to be susceptible of being taken as confessed, and they should have been so taken, unless some good reason appears why the same ought not to have been done. Appellee contends that the object and intention of the framers of the law was that it should be reciprocal between the parties; and, as the law is inoperative as to a corporation, so it should be to those who sue or are sued by corporations. It is true that the law makes no provisions by which the deposition of a corporation can be taken, and in Brown v. Thompson, 79 Tex. 58, 15 S. W. 168, it was held that in a suit against a corporation the depositions of its managing officer could not be taken in an ex parte manner, so as to bind the corporation. But this, we think, is not a sufficient reason to exempt others who are litigating with a corporation from the operation of the statutory rule above laid down. In the case of Railway Co. v. Reason, 61 Tex. 613, the railway company propounded interrogatories to Reason, and Mr. Justice Stayton treated the method of so taking as proper, though in that case the question here presented was not raisd. Appellee also contends that, as plaintiff was put upon the stand, and being subjected to the cross-examination of defendant's counsel, the object of the statute was subserved, and defendant not injured thereby. Whether or not defendant was injured by such ruling cannot be determined by this court. The question is, was the ruling calculated to affect the...