Tex. & Pac. R.R. Co. v. Casey
Decision Date | 28 October 1879 |
Citation | 52 Tex. 112 |
Parties | THE TEXAS AND PACIFIC RAILROAD CO. v. ROBERT CASEY AND WIFE. |
Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Marion. Tried below before the Hon. B. T. Estes.
Mary Casey, on the 1st of October, 1874, entered the cars of the Texas and Pacific Railroad Company at Jefferson to go to Moore's Landing. After taking her seat on the cars, and before they had proceeded far, the conductor demanded to know of her if she had a pass permitting her to ride on the cars. She replied that she had not, and was at once put off the cars by the conductor, at or near a water-tank. She brought suit against the company, and in her petition alleged that she was about to explain to the conductor the reason why she had no written pass, which was that her husband, being in the employment of the defendant, she had been passed free to Jefferson, and had been told that she would be permitted to return free; that the conductor refused to receive her explanation, and at once put her off the cars, as she alleged, in a rude, wanton, and malicious manner. She alleged that she, with her infant child, was put off the cars against her will, in the presence of a large number of passengers, which greatly mortified her, and that she was greatly frightened and had to walk some two or three miles, in consequence of which she was greatly injured; that she, in consequence, suffered from a miscarriage and the premature birth of a child, &c.; that she was confined for nearly a month, and that continued ill-health was produced, so that up to the time of filing the amended petition (February 20, 1875) she had not fully recovered.
The original petition prayed for judgment for $500 actual damages, and for $5,000 additional for injury to feelings, mortification, and disgrace. In the amended petition the wife prayed for judgment for $5,000 damages, in addition to the sums prayed for in the original petition, without stating whether they were claimed as actual or punitory.
December 28, 1874, defendant filed general demurrer, not guilty, and general issue. The defendant's general demurrer was overruled. May 1, 1878, the case was tried before a jury, and verdict rendered for the plaintiffs for $2,500. The testimony of Mrs. Casey sustained the allegations of her petition, though there was conflicting evidence as to the bearing of the conductor and the extent of her injuries. The verdict simply found for plaintiffs, and assessed ““the damages at $2,500.” Judgment on the verdict for plaintiffs. The charge of the court as to the character of stopping-places at which a railroad company can eject a passenger, will be found in appellant's brief. A motion for new trial was overruled, and the defendant appealed.
On the question of damages the court charged as follows:
F. B. Sexton, for appellant.
I. Neither the petition nor amended petition anywhere alleged that the conductor whose acts and conduct are complained of by plaintiffs and set forth as their ground of action, was an agent or servant of defendant.
II. The master (in this case the railway company sued as defendant) is not liable for the wanton, malicious, or willful acts of the servant, (the conductor,) unless they are committed in the course of the master's business while he (the servant) is acting within the scope of his authority or employment. There is no allegation in either the original or amended petition that the conductor was acting for the company, or that his acts, of which complaint is made, were within the scope of his authority or employment. Manifestly it was necessary, for the plaintiffs to recover, that these facts should be proven; if so, it was certainly necessary that they should be alleged. Without them the petitions were bad, and should have been so held. (Wood's Law of Master and Servant, sec. 309, p. 590; Gillett v. Missouri Valley Railroad Co., 55 Mo., 315; 17 Am. Reps., 653; Hays v. Houston and Great Northern Railroad Co., 46 Tex., 280.)
III. We maintain that the damages found by the jury must be punitive, and therefore contrary to the law as given by the court, because there is no evidence whatever of actual damage sufficient to justify the enormous amount found by the jury.
IV. The court erred in refusing to grant a new trial, “because the testimony of plaintiffs' witness, Mary Casey, as to the manner she was put off defendant's train, is supported by no witness whatever, but is entirely overborne and contradicted by three disinterested and unimpeached witnesses, and ought not to be considered.”
V. We maintain the court committed error in refusing a new trial, because the verdict is against law and evidence, and the duty of this court for these reasons is to reverse. We refer to the following: 1 Greenl. on Ev., sec. 13 a; 1 Grah. & Wat. on New Trials, pp. 326, 327, 341, 350, 368; Silva v. Low, 1 Johns. Cas., p. 336; 3 Grah. & Wat. on New Trials, pp. 1305, 1311, 1312, 1325, 1330, 1369; Latham v. Selkirk, 11 Tex., 321;Chicago and Rock Island Railroad Co. v. Herring, 57 Ill., 59.
VI. The law (Paschal's Dig., art. 4892) does not provide that a passenger who refuses to pay his fare should be put off the cars at “a place or station usual for taking on and discharging passengers,” but does provide that a “passenger refusing to pay his toll or fare may be put off the cars at any usual stopping-place which the conductor may select.” The interpretation given by the court to the statute referred to was not correct.
That portion of the charge of the court to which we refer is found in a special instruction given by the court upon application of appellees, which is in the following words:
“If you believe from the evidence that the plaintiff, Mrs. Casey, was on defendant's train, as alleged, for the purpose of going to Moore's Landing, in Bowie county, and if, on demand of the conductor, Mrs. Casey refused to pay her fare, then the conductor would have the right to put her off the train; but the court charges you that the conductor would not be allowed to put her off except at a usual stopping-place, and the court instructs you that the usual stopping-place here mentioned means a usual stopping-place for the putting on and off of passengers in the usual way; and if the conductor ejected plaintiff from the cars at a place other than a usual stoppingplace for the putting on and off of passengers, then the plaintiffs are entitled to recover.”
VII. The court erred in its charge in this: that it did not correctly, and with sufficient definiteness, define the difference between punitive and actual damages, so that the jury could know for which they might find; nor did it lay down with sufficient distinctness the rule or measure of damages by which they should have been governed.
The only damages, if any, which the plaintiffs were entitled to recover, were actual damages.
Actual damages are such as naturally and directly resulted from the act of defendant complained of by plaintiffs, and include loss of time,...
To continue reading
Request your trial-
Hall v. Memphis & C. R. Co.
... ... Co. v ... Randolph, 53 Ill. 510; Railway Co. v. Moore, 49 Tex. 31; ... Hazard v. Chicago, etc., R. Co. 1 Biss. 503; Mobile, etc., R ... Co. v. Wilt, 4 Whart ... 142; Yerger v. Warren 7 Casey, 319 ... [ 16A ] Hoffman v. N.Y. Cent. R. Co. 46 ... N.Y.Sup. (14 J ... Co. 63 Me ... 298, 303 ... [ 20B ] Bland v. Southern Pac. R. Co. 55 Cal ... 570; S.C. 3 Amer. & Eng.R.Cas. 285 ... [ 21A ] ... ...
-
Gulf, C. & S. F. Ry. Co. v. Green
...in the revision of the statutes and has not been re-enacted, and is therefore no longer a law in this state. See, also, T. & P. Ry. Co. v. Casey, 52 Tex. 112. And, in states where there is such a statute, recoveries have been allowed where passengers were put off between stations, irrespect......
-
Habeck v. Chi. & N. W. Ry. Co.
...the ejection of a passenger, except at some “passenger station,” so the case is clearly not in point here. In Texas & P. R. R. Co. v. Casey et al., 52 Tex. 112, the passenger was put off “at or near a water tank,” and it was held that the place was not a “usual stopping place” within the me......
-
Western Union Telegraph Co. v. Coker
...the verdict of the jury, it is clearly its duty to set aside the judgment rendered on the verdict." And in the case of Texas & P. R. Co. v. Casey, 52 Tex. 112, at page 122, our Supreme Court "* * * that the right to a new trial in a proper case is a valuable one given by law, and should be ......