Missouri, K. & T. Ry. Co. of Texas v. Linton

• Decision Date: 01 November 1911
• Citation: 141 S.W. 129
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. LINTON.
• Court: Texas Court of Appeals

141 S.W. 129

MISSOURI, K. & T. RY. CO. OF TEXAS v. LINTON.

Court of Civil Appeals of Texas. Austin.

November 1, 1911.

Rehearing Denied November 22, 1911.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

Action by Adeline Linton against Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 126 S. W. 678.

Coke, Miller & Coke and Ramsey & Odell, for appellant. O. T. Plummer and S. C. Padelford, for appellee.

RICE, J.

Appellee's son, Joseph Linton, was accidently killed near Colfax, Wash., in January, 1906, of which fact she was apprised by wire on the 19th of said month, stating that his body had been embalmed and was ready for shipment. She, on Monday following the receipt of this information, contracted with appellant company, through its agent at Cleburne, to ship said remains within a reasonable time, to wit, within five days, to her for burial at her residence near Keene, Tex.; but this contract on the part of the company, as she alleged, was breached, whereby she was compelled to make other arrangements with the express company, which was thereafter done at an additional expense. She brought this suit to recover damages for said amount, as well as for physical pain and mental anguish sustained thereby.

After a general denial, appellant resisted recovery on the ground that no contract was entered into by it, whereby said remains would be shipped in any specified time, or by any certain route, and that the contract declared upon was without the scope of authority of such agent; and, further, that if any delay, as claimed, occurred, the same was due to the failure of appellee to provide return transportation for an attendant to accompany said remains, without which it could not be shipped, under the rules and regulations prescribed by appellant and other lines with which it connected. There was a jury trial, resulting in a verdict and judgment for the plaintiff, from which this appeal is prosecuted. This is the third appeal of this case. The two former appeals were determined by the Dallas Court of Civil Appeals, and will be found reported in 109 S. W. 942, and 126 S. W. 678, to which reference is made for a fuller statement of the pleadings and evidence.

The first two assignments complain of the action of the court in permitting the witnesses Misses Minnie and Julia Linton, daughters of appellee, to testify, over objection of appellant, that their mother, after receiving information that the remains of her son had not been shipped, did not sleep at all at night, did not have any memory, did not seem to remember anything, and to testify as to her declarations expressive of her feelings, stating, among other things, that she felt like her heart would burst, and that she could not live. It is contended on the part of appellant that the questions eliciting these answers were leading and suggestive, assuming the disappointment of their mother on account of the failure of the shipment of her son's remains, and for the further reason that the witnesses were not shown to be experts or judges of mental troubles or distresses, and were not competent to give an opinion, and any statement by them would be mere conclusions; and, further, for the reason that said witnesses could not know and distinguish between the natural grief of their mother for the loss of her son, for which there could be no recovery, and the disappointment which she might feel from a few days delay in getting the remains of her son. The questions propounded were not, in our judgment, leading; and, if it be admitted that they assumed such disappointment, this fact had already been established by her testimony. It is always competent to prove the extent of physical and mental suffering by the statement of any facts manifesting the same, which come under the observation of the witness. See 1 Greenl. Ev. p. ___; M., K. & T. Ry. Co. v. Linton, 109 S. W. 942; s. c., 126 S. W. 678; Telegraph Co. v. Cooper, 75 Tex. 535, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920; St. L. S. W. Ry. Co. v. Martin, 26 Tex. Civ. App. 231, 63 S. W. 1089; H. & T. C. R. R. Co. v. Shafer, 54 Tex. 641; G., C. & S. F. Ry. Co. v. Rose, 11 Tex. Civ. App. 201, 32 S. W. 730; Amer. & Eng. Ency. Law (2d Ed.) vol. 24, p. 267, and notes.

The mental status of a person may also be established by the testimony of nonprofessional witnesses, derived from their acquaintance with and observation of the conduct, appearance, and actions of the party inquired about. This rule is well settled in this state. See Webb v. State, 5 Tex. App. 608, and cases there cited; Leache v. State, 22 Tex. App. 279, 3 S. W. 539, 58 Am. Rep. 638. These young ladies were constantly with their mother during the time inquired about, and it was proper to allow them, not only to state the facts, acts, and circumstances which indicated to them her mental status, but it was likewise competent for them to express their opinion relative thereto, for which reason these...