St. Louis, A. & T. Ry. Co. v. Mackie

• Decision Date: 19 October 1888
• Citation: 9 S.W. 451
• Parties: ST. LOUIS, A. & T. RY. CO. <I>v.</I> MACKIE.
• Court: Texas Supreme Court

9 S.W. 451

ST. LOUIS, A. & T. RY. CO.

v. MACKIE.

Supreme Court of Texas.

October 19, 1888.

Appeal from district court, Henderson county; F. A. WILLIAMS, Judge.

Action by N. A. C. Mackie against the St. Louis, Arkansas & Texas Railway Company for negligently selling plaintiff other tickets than what he paid for, in consequence whereof he and his wife were ejected from the first-class car. Judgment was entered on a verdict for plaintiff, and defendant appealed.

Clark, Byer & Bolinger, for appellant. Richardson & Watkins, for appellee.

STAYTON, C. J.

Appellee, desiring, with his wife and two young children, to go from Athens, Tex., to some place in North Carolina, applied to the appellant's agent at Athens, Tex., for through tickets to Nashville, Tenn. Tickets were issued to him, for which he paid the price charged by the company for first-class tickets; but, by mistake or otherwise, tickets were delivered to him which entitled him and family to travel only in a second-class car. He did not examine the tickets when they were delivered to him, but, on the arrival of the train, with his family entered a first-class car on the appellant's railway. After the train had traveled but a few miles, the conductor called for his tickets, which were produced, when the conductor required him and family to leave the first-class car, and take seats in a second-class car; and, while no force was used by the conductor in bringing this about, it was done under circumstances calculated to humiliate and mortify the feelings of the appellee and his wife, who, from the record, appear to have been people of refinement and intelligence. At the time this was done, and at all other times during the trip, when, on any of the roads over which the tickets took the appellee and his family, the appellee was refused passage in a first-class car, he explained to the conductors the circumstances under which the second-class tickets were delivered to him. The conductors offered to permit the appellee and his family to travel in a first-class car if he would pay one cent per mile on each ticket in addition to what he paid for the tickets. This he refused to do, as appears from his evidence, because he had paid for the tickets a sum that entitled him to first-class tickets; but it is rendered probable by the evidence that he had not money sufficient to pay this demand, and pay the other necessary expenses of himself and family until they would reach their destination. It is alleged that the second-class coaches in which the appellee and his family were compelled to travel from Athens, Tex., to Nashville, Tenn., were uncomfortable, foul with smoke, dirt, and filth, and filled with negroes and coarse whites, who smoked tobacco, drank whisky, and used violent, profane, and obscene language in the presence of appellee and his family; in consequence of which it is alleged the appellee and his family were greatly humiliated and injured, physically and mentally. It is further alleged that the misconduct of the persons in the cars was open, and that no effort on the part of the officers in charge of trains was made to prevent it. It was further alleged that tobacco smoke caused nausea to the appellee's wife. The matters thus alleged are proved in great detail. There was a verdict and judgment for $17 for injuries to the appellee, and for $500 for injuries to his wife.

On the trial, a witness, over the objection of appellant, was permitted to state that a few days after the tickets were sold to appellee he had a conversation with the agent of appellant at Athens, Tex., in which the latter told him that the price for first-class tickets from Athens, Tex., to Nashville, Tenn., was $22.45. This was the price paid by appellee for each ticket delivered to him, and the objection to the evidence was that it was not res gestæ, but hearsay, and therefore inadmissible. It may be admitted that this objection ought to have been sustained; but if from the record it appears that the proof of the same fact sought to be thus established was made by other evidence, admitted without objection and unrebutted, then this ruling furnished no ground for reversal. The same witness, whose evidence, as above stated, was objected to, was permitted to state without objection that the appellant's agent at Athens told him "that there was but one price for tickets sold to Nashville, and that was $22.45, and that they never sold any but first-class tickets; that no second-class tickets were ever sold to that point. Champers (the agent) showed me the stubs of the two tickets which were sold to Mackie and his wife, and which they still had in the office, and the stubs showed that they were sold as first-class tickets." The last part of this evidence was brought out by the appellant, and there is no conflict of evidence as to the price paid by appellee, nor as to the price of first-class tickets. In this state of the record, if the court erred in admitting the evidence objected to, — a matter we need not decide, — the ruling was...