I. & G. N. R'Y Co. v. Leak

• Citation: 64 Tex. 654
• Decision Date: 24 November 1885
• Docket Number: Case No. 1925.
• Court: Supreme Court of Texas
• Parties: I. & G. N. R'Y CO. v. R. A. LEAK.

64 Tex. 654

I. & G. N. R'Y CO.

v.R. A. LEAK.

Case No. 1925.

Supreme Court of Texas.

Nov. 24, 1885.

APPEAL from Rusk. Tried below before the Hon. J. G. Hazlewood.

The opinion states the case.

Jones & Gould, for appellant.

Drury Field and Martin Casey, for appellee.

ROBERTSON, ASSOCIATE JUSTICE.

On December 24, 1880, Dr. R. A. Leak started to Austin, Texas, to take to the asylum his wife, who was afflicted with lunacy. At Overton, having purchased tickets for himself and wife, he entered with her the south-bound train. The conductor ordered that Mrs. Leak be taken from the train, and she was put off. On January 18, 1881, Dr. Leak commenced this suit for damages done to himself and wife in their expulsion from the defendant's train. On December 8, 1882, a pleading was filed making Mrs. Leak a party plaintiff with her husband. On January 8, 1884, Dr. Leak having deceased since the suit was commenced, D. A. Leak, as the next friend of Mrs. Leak, who, it appears, has never recovered her faculties, and of the only child of Doctor and Mrs. Leak, made himself a party plaintiff by supplemental petition. On January 7, 1885, D. A. Leak, by a trial amendment, averred that he was the duly appointed and qualified guardian of the estates of Mrs. Leak, and of Ethel Leak, the minor child of Doctor and Mrs. Leak, and as such made himself a party plaintiff in the suit.

On January 14, 1885, D. A. Leak, as the guardian of Mrs. Leak, recovered against the appellant a judgment for $2,500 and costs, from which this appeal has been taken.

The defenses relied upon in the court below and the points made here for reversal will sufficiently appear in the review in detail of the several assignments of error not waived by the appellant in the presentation of the cause in this court.

The third and fifth errors assigned complain of the action of the court in admitting in evidence the answer of Dr. Leak to the fourteenth interrogatory and of the answer of Sam. D. Woodward to the second interrogatory. It appears from the record that the depositions of these witnesses were read upon the trial of the cause, and from the bill of exceptions that these answers were admitted over appellant's objection. What the answers were is not stated in the bill of exception with sufficient definiteness to enable us to review the rulings of the court below, and in the statement of facts the testimony of both these witnesses is given without reference to the numbers of the interrogatories. In the absence of a bill of exception distinctly stating what testimony was objected to, we cannot revise the action of the court below in admitting the evidence.

The sixth assignment is that the court erred in overruling appellant's exceptions to the pleadings of appellee. The pleadings and the exceptions were numerous and voluminous, and this assignment is too general to be considered.

The seventh assignment is that the court erred in sustaining an exception to appellant's plea of limitation. The only plea in the record, to which this assignment could refer, is that more than a year elapsed after the death of Dr. Leak before new parties plaintiff were made. We do not find that any exception to it was sustained, and when Dr. Leak died does not appear.

The eleventh assignment, that the court erred in not instructing the jury upon limitation, is manifestly not well taken. The evidence not disclosing the date of Dr. Leak's death, if the plea contained in the record presented any defense or bar, the essential fact sustaining it to warrant a charge upon it was wholly wanting.

The appellant, as a fourth proposition under the sixth, seventh and eleventh errors assigned, says that the cause of action is community property of Doctor and Mrs. Leak, and the pleadings do not show that there is no administration or necessity for any. This is pertinent only under the sixth assignment, which we have already seen is not sufficiently specific to authorize consideration.

The eighth assignment is that the court erred in refusing to give the special charges requested by the appellant. The special charge requested contains six paragraphs, each presenting distinct propositions upon distinct lines of defense. Some of these propositions it is perfectly clear should not have been given; if the whole is but one special charge, to be given or refused as a whole, it was properly rejected. If each paragraph is a separate request to be acted upon, the assignment does not specify any error with the certainty required by the statute and the rules. In either view the eighth assignment is not sustained.

The ninth assignment is that the court erred in refusing the motion for new trial. The original and the amended motion contain together fifteen grounds. This assignment manifestly points out no error.

The tenth assignment is that the court laid too great stress upon the extreme degree of care required of the conductor of the train in expelling Mrs. Leak from the car. It is complained that the court below in the charge by repetition emphasized this principle. The degree of care required is not improperly stated in the charge. The repetition of the statement can do no harm, unless it induced the jury to believe that the court thought there was evidence showing a want of the requisite care prescribed. The reiteration is not of a kind calculated thus to mislead or improperly...