Houston & T. C. R. Co. v. Ritter

• Decision Date: 29 June 1897
• Citation: 41 S.W. 753
• Parties: HOUSTON & T. C. R. CO. v. RITTER.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 753

41 S.W. 753

HOUSTON & T. C. R. CO. v. RITTER.¹

Court of Civil Appeals of Texas.

June 29, 1897.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by Herman J. Ritter against the Houston & Texas Central Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Stanley, Spoonts & Thompson, for appellant. W. S. Essex and R. Y. Prigmore, for appellee.

TARLTON, C. J.

The appellee, as plaintiff, in behalf of himself, recovered a verdict in the sum of $3,500, and in behalf of his wife, Mrs. Eloise R. Ritter, he recovered a verdict in the sum of $2,750, against the appellant, as damages for personal injuries.

The incident out of which the suit grows occurred on the night of February 28, 1896. The plaintiff and his wife were on a train of the defendant between Houston and Hempstead, when the train conductor, whose duty it was to take up their tickets, discovered that the one on which the plaintiff claimed to be a passenger was an invalid ticket, in that it was issued to one H. C. Rider, a person other than the plaintiff; that by its terms it was not transferable, and provided that, if presented to any conductor by a person other than the original purchaser, it should from that moment be void, and the conductor should be authorized to take up the ticket and cancel it, collecting fare from the person presenting it. The injuries to the plaintiff and to his wife are ascribed to the violence of the conductor and of the sheriff and his deputy, called to the assistance of the conductor, in an attempt to eject the plaintiff on account of his failure to pay his fare.

We deem it our duty to reverse the judgment for the following reasons:

1. One of the injuries alleged to have been sustained by the plaintiff's wife consisted in a miscarriage, charged to have been brought about by the violence complained of. In proof of this allegation the plaintiff was permitted, over the objection of the defendant, to read the deposition of one Mrs. Miller that several days after the incident, and after the arrival of the appellee and his wife at Colorado Springs, where their journey terminated, the appellee's wife told the witness Mrs. Miller that she had been with child six weeks, and had suffered a miscarriage. We condemn this evidence as in the nature of hearsay, and of a self-serving declaration, which should have been excluded. It is true that Mrs. Ritter herself testified to the fact of miscarriage, but it was clearly erroneous to permit her to thus duplicate her testimony by proof of an unsworn statement to a third person. Hunter v. Lanius, 82 Tex. 682, 18 S. W. 201. The jury were thus enabled to regard the statement as original evidence, to the probable detriment of the defendant. The declaration was not of the res gestæ. Railway Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039. It was not admissible, under the rule stated in Rogers v. Crane, 30 Tex. 287, cited by the appellee, because the bodily condition did not co-exist with the declaration. The fact that this deposition read by the plaintiff was incorporated in an answer, though not responsive to a cross-interrogatory of the defendant, would not render the statement admissible. We have recently held that the rule binding a party by evidence elicited by him on cross-examination, while under other circumstances it would be inadmissible, does not apply when the testimony consists in the deposition of a witness in reply to cross-interrogatories. McCutchen v. Jackson (Tex. Civ. App.) 40 S. W. 177.

2. An element of damage relied upon in the recovery by the wife, both in the pleadings and the evidence of the plaintiff, consisted in the humiliation and mortification resulting from an exposure of her person by the conductor or his assistants, due to the removal of the curtains from the berth in which the plaintiff and his wife were lying, and from which the conductor was seeking to have the plaintiff ejected. As relevant to the question of compensation for any mental suffering which the wife might endure on account of this exposure of her person, and shock to her modesty, the defendant offered evidence tending to show that in 1893 and 1894 the plaintiff's wife conducted a disreputable house in the city of Ft. Worth, and that she was a woman whose general reputation for chastity was bad, that the house in which she lived at that time was regarded in the community as a house of prostitution, and that the reputation of the plaintiff's wife was that of a prostitute. The question of compensation depends upon the amount of suffering which is the proximate result of the injury complained of. The suffering which would be endured by a woman modest in character and deportment, chaste and sensitive, would be much greater, we apprehend, in case of an exposure of her person, than would be that endured by a prostitute. As said by the supreme court of Vermont in Parker v. Coture, 21 Atl. 494: "It cannot be said that a woman without modesty would suffer as much from an assault * * * as a woman with modesty; and if it cannot be shown that the former has no modesty to shock, she is put on an equality with the latter, and may recover for injury to that which she does not possess." We are unable to state that the time at which it was proposed to show that this reputation existed was so remote as to render the testimony inadmissible, or to hold that on account of the intervening marriage with the plaintiff reformation should be conclusively...