St. Louis & S. F. R. Co. v. Boyer

• Citation: 97 S.W. 1070
• Parties: ST. LOUIS & S. F. R. CO. v. BOYER et al.
• Decision Date: 24 November 1906
• Court: Texas Court of Appeals

97 S.W. 1070

ST. LOUIS & S. F. R. CO. v. BOYER et al.

Court of Civil Appeals of Texas.

November 24, 1906.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Action by W. J. Boyer and another against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

C. H. Yoakum and Head, Dillard & Head. for appellant. Wolfe, Hare & Maxey and W. J. Mathis, for appellees.

RAINEY, C. J.

Appellees, husband and wife, brought this suit against appellant to recover damages for personal injuries to the wife, Mrs. Boyer, occasioned by the derailment of a train operated by appellant, on which Mrs. Boyer was a passenger, near Vinita, in the Indian Territory. On a trial before a jury a judgment was rendered against the railway company for $7,500, from which this appeal was taken.

Appellant's first assignment of error complains of testimony admitted over its objection as to expression of pain and suffering by Mrs. Boyer, as shown by its bill of exceptions as follows: "Be it remembered that, on the trial of this cause, when Mrs. Blanche McKinney was testifying as a witness in behalf of the plaintiff, she testified that she had seen Mrs. Boyer at Durant. She was then asked this question: When you would be with her, did she or not make any complaint of suffering at any time you were with her? I want you to understand the question, I am not asking if she made complaints of having suffered at some other time when you were not there. For instance, if you would come in to-day, if she complained of suffering yesterday, I am not asking you about that, but did she complain, at any time make complaints of any suffering that she was then experiencing while you were there and was she talking to you? If so, state what complaints she made; that is, complaints during the time you have known her since December, 1904. To the evidence sought to be elicited by the question, defendant objected that it would be a self-serving declaration and action. It would be a complaint after suit filed, and not an involuntary exclamation of pain; which objection was overruled, and the witness answered: `I have seen her when she would be lying in bed and she would say: "I am suffering intensely with my head this morning." That is about what she would say.' To the action of the court in overruling the objection defendant then and there excepted." This testimony of Mrs. McKinney relates to expressions of Mrs. Boyer while living at Durant. Plaintiff moved to Durant about December 1, 1904, and suit was filed December 21, 1904. In this connection appellant submits the following proposition: "In order for the statements of a plaintiff suing for personal injuries to be admissible in evidence, they must relate to present pain or suffering, be the natural exclamations brought about by his condition, and sufficiently involuntary to exclude the idea of premeditation or design. This rule is doubly strong after suit is brought." In the case of Bacon v. Charlton, 7 Cush. (Mass.) 581, the court, in discussing the admission of such testimony, said: "The rule of law is now well settled, and it forms an exception to the general rules of evidence, that where the bodily or mental feelings of a party are to be proved, the usual and natural expressions of such feelings, made at the time, are considered competent and original evidence in his favor. And the rule is founded upon the consideration that such expressions are the natural and necessary language of emotion, of the existence of which, from the very nature of the case, there can be no other evidence. There are ills and pains of the body, which are proper subjects of proof in courts of justice, which can be shown in no other way. Such evidence, however, is not to be extended beyond the necessity on which the rule was founded. Anything in the nature of narration or statement is to be carefully excluded, and the testimony is to be confined strictly to such complaints, exclamations, and expressions as usually and naturally accompany, and furnish evidence of, a present existing pain or malady." When the expression of Mrs. Boyer was made as testified to, she was lying in bed, and, if she was suffering with her head, it was one that would naturally flow from such a condition, and indicates existing pain. It is not a narrative or statement of a past occurrence, but an expression of the pain she was then suffering. The suffering of a party in many cases can only be ascertained by expressions of the party himself, and, this being the best evidence of which it is susceptible, such evidence is admissible if such expression is usual and natural under such condition. Whether or not Mrs. Boyer was feigning is for the jury to determine, and whether or not such expressions were made some time after the accident does not affect its admissibility, but might affect the weight that should be given to it. Railway Co. v. Barron. 78 Tex. 421, 14 S. W. 698. We are of the opinion that the evidence was properly admitted, which holding we think is sustained by the following authorities: Railway Co. v. Shafer, 54 Tex. 641; Newman v. Dodson, 61 Tex. 91; Railway Co. v. Bell (Tex. Civ. App.) 58 S....