Tex. & Pac. R.R. Co. v. Casey

Decision Date28 October 1879
Citation52 Tex. 112
PartiesTHE TEXAS AND PACIFIC RAILROAD CO. v. ROBERT CASEY AND WIFE.
CourtTexas 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:

The acts and trespasses complained of by plaintiffs are charged to have been done immediately by the conductor in charge of the car referred to, and whatever may be your feeling as to his conduct, it is not charged that defendant ratified the acts or was directly guilty of fraud, malice, gross negligence, or oppression. You cannot, therefore, find for plaintiffs punitory or exemplary damages; but in case you find for plaintiffs, you are instructed to find only such actual damages as the evidence satisfies you were suffered by them pecuniarily and in feelings, injuries, and sufferings resulting from an unlawful act. To entitle plaintiffs to recover damages, you should be satisfied from the evidence that plaintiff, Mary Casey, was wrongfully removed from the car by defendant's conductor, or, if properly and lawfully removed, whether the act of removal was done by the conductor maliciously, or done violently, or with indignity and injury to the person. If the evidence shows that plaintiff, Mary Casey, was on the train of defendant, and had no pass or right to ride thereon without pay, and refused to pay her fare thereon when the same was demanded by the conductor, then the conductor had the lawful right to remove her from the train, using only such force as was necessary therefor, and in a manner not to endanger her personal safety and cause personal injury, but such removal should be at a place or station usual for taking on and discharging passengers. If the evidence shows that plaintiff, Mary Casey, was so on the train without a pass or authority to ride free of charge, and refused to pay her fare when demanded by the conductor, and was removed from the train at such usual stopping-place without violence or rude conduct on the part of the conductor, and without personal indignity or injury, then defendant is not liable for damages, and you should find for defendant. If, on the other hand, the evidence shows that said Mary Casey was removed with unnecessary violence and rudeness or personal indignity toward her on the part of the conductor, or was removed from the car at a place not a usual stopping-place for the trains, then you will find for plaintiffs such amount in damages as the evidence shows plaintiffs to have sustained. In considering the actual damages, you can estimate the same by the injuries sustained by plaintiffs in their feelings and personal injuries and sufferings resulting from the unlawful act, if any such is proven, as well as the actual pecuniary loss to the plaintiffs; but you should not consider the pecuniary circumstances of plaintiff and defendant in estimating damages, but should deal with them as with individuals of equal wealth or poverty. If your finding be for plaintiffs, you should say by your verdict in what sum, and the sum should not be in excess of the amount claimed in plaintiffs' petition and amended petition. If you find that no wrong or injury was done to plaintiffs by defendant, your verdict should simply be for defendant.”

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,...

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