Opinion
No. 4229.
July 7, 1932. Rehearing Denied September 22, 1932.
Appeal from District Court, Marion County; I. N. Williams, Special Judge.
Suit by H. B. Woodard against the Texas Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
Reversed, and cause dismissed.
Appellee was the plaintiff in the court below. In his petition he alleged that on July 13, 1930, at Alexandria, La., he purchased of appellant (defendant in said court) a ticket entitling him to be carried from that place to New Orleans and back over appellant's line of railway, and then alleged as follows:
"The defendant did negligently and carelessly cause and/or permit the plaintiff to be insulted, humiliated, and intimidated by an agent, servant, or employee of defendant or one permitted to operate over and use the lines of defendant between New Orleans and Alexandria, Louisiana, in that when plaintiff was returning from New Orleans to Alexandria, Louisiana, in accordance with his ticket and contract with defendant, said agent, servant, or employee, after accepting the return portion of plaintiff's ticket did, in the presence of other fellow passengers of plaintiff, demand that plaintiff pay his fare or get off the train. That plaintiff protested paying his fare for the reason that he had already paid it once, and attempted to remain on said train without twice paying his fare.
"That notwithstanding the obligation of defendant as above alleged, it did cause or permit said employee to threaten to eject plaintiff and remove him from said train where plaintiff was entitled to be by virtue of said contract or ticket, and that when plaintiff protested at leaving said train, defendant did cause or permit an officer of the law to come upon said train at and near the station of Donaldsonville, Louisiana, and did cause and permit said officer of the law to threaten and intimidate plaintiff in the presence of his fellow passengers, thereby causing him great humiliation and mental suffering, and did further embarrass the plaintiff and demand that he either pay another fare or leave the train of the defendant.
"Plaintiff further shows that by reason of the conduct of the defendant in breaching or causing to be breached its contract with plaintiff entitling him to safe passage from New Orleans to Alexandria, Louisiana as alleged, plaintiff was caused to suffer much mental pain and anxiety, and particularly was he humiliated and embarrassed by being threatened with arrest as above alleged. That plaintiff is a law abiding and upright citizen of good standing in the community where he lives and mixing with the better class of people of his color; that said conduct of defendant did lower the plaintiff in the eyes of his fellow passengers, and cause him great humiliation and mental suffering on account thereof. Plaintiff shows that all of the threats and insults above alleged occurred after 11:59 P. M., July 14th, and that he was threatened with ejection at about 2:30 o'clock in the morning at a place where plaintiff had never been, and that this caused plaintiff great mental anguish as above alleged.
"Plaintiff also shows that by reason of the threats and intimidations above alleged, he was forced to pay to said agent or employee, the sum of Seven 52/100 ($7.52) Dollars, representing the complete fare from New Orleans to Alexandria, Louisiana, although defendant had contracted to safely transport plaintiff from New Orleans to Alexandria, Louisiana, and had received a consideration from plaintiff at the time said demand for additional money was made. That plaintiff was forced to pay said sum of money in order to remain on said train.
"Plaintiff alleges that the conduct of the defendant above set out took place in the presence of many other fellow passengers of plaintiff, thereby greatly humiliating and embarrassing plaintiff, and lowering him in the eyes of said fellow passengers.
"Plaintiff also shows that just prior to and at the time he boarded said train at New Orleans, Louisiana, the conductor or agent thereof advised him that the said ticket or tickets he had purchased at Alexandria were good for passage on said train, and that said conductor or agent did then at a later time and at a strange place to plaintiff, threaten him with ejection and intimidate him as above alleged. That the defendant is responsible for the actions of said agent.
"The plaintiff shows that if the defendant was not, in fact, required under its contract to permit the plaintiff to ride on the said train on the said ticket on the return trip from New Orleans, that it should have so advised the plaintiff when he applied at the train of defendant and exhibited the said ticket, but that the said defendant's agents and representatives negligently permitted and authorized the plaintiff to get upon the said train and negligently told the plaintiff that the said ticket was good for the said return trip on said train, and that said defendant's agents, servants, and employees thereafter negligently endeavored to force the plaintiff to pay additional fare for riding on said train, or in the alternative, to leave the said train, and negligently abused and humiliated him as set forth in other paragraphs of this petition, to his great damage as in this petition set forth.
"Plaintiff shows that by reason of the mental humiliation and suffering he endured by reason of the insults of said conductor and by reason of the mental humiliation and suffering and being lowered in the eyes of his fellow passengers and being accused of attempting to ride without paying his fare, he was injured to his damage in the sum of, towit: Ten Thousand ($10,000.00) Dollars."
The appeal is from a judgment for $400 in appellee's favor against appellant.
Bibb Bibb, of Marshall, for appellant.
S. P. Jones, Franklin Jones, and Percy Woodard, all of Marshall, for appellee.
It will be noted, on looking to the part of appellee's petition set out in the statement above, that his suit (except for the $7.52 he alleged he paid to be carried back to Alexandria) was not for injury to either his person or property, but was entirely for mental suffering he was subjected to as a result of conduct of employees of appellant in demanding in the presence of other passengers that he pay again, or leave the train, fare he had already paid, in threatening if he did not do that to arrest him, and in describing him as a "hard-boiled negro." It is held that "actual damages cannot be recovered for mental suffering, where there is no physical injury, no injury to property, nor other element of actual damages." Gulf, C. S. F. Ry. Co. v. Trott, 86 Tex. 412, 25 S.W. 419, 40 Am.St.Rep. 866, and see Malin Browder v. McCutcheon, 33 Tex. Civ. App. 387, 76 S.W. 586; Texas Electric R. Co. v. Price (Tex.Civ.App.) 218 S.W. 1092; Williams v. Yoe, 19 Tex. Civ. App. 281, 46 S.W. 659; Texas Power Light Co. v. Taylor (Tex.Civ.App.) 201 S.W. 205; Ft. Worth R. G. Ry. Co. v. Jones, 38 Tex. Civ. App. 129, 85 S.W. 37; Stein v. Greenbaum (Tex.Civ.App.) 203 S.W. 809; Southwestern Bell Tel. Co. v. Cook (Tex.Civ.App.) 30 S.W.2d 497; 3 Cooley on Contracts, §§ 2144, 2145; 3 Page on Contracts, § 1582; 3 Sutherland on Damages, §§ 976, 980. It follows that a cause of action for a sum in excess of $7.52 was not stated in appellee's petition. As the district court was without power to hear and determine the suit so far as it was for the $7.52 (Lissner v. Stewart (Tex.Civ.App.) 147 S.W. 610; City of Desdemona v. Wilhite (Tex.Civ.App.) 297 S.W. 874; Gaddis v. Tel. Co., 33 Tex. Civ. App. 391, 77 S.W. 37), it follows, further, that this court is without jurisdiction of the appeal, and cannot do otherwise than dismiss same. Western Union Tel. Co. v. Arnold, 97 Tex. 365, 77 S.W. 249, 79 S.W. 8; City of Ft. Worth v. Zanecetti (Tex.Com.App.) 29 S.W.2d 958; A. B. Richards Medicine Co. v. Graves (Tex.Civ.App.) 273 S.W. 702; Malin Browder v. McCutcheon, 33 Tex. Civ. App. 387, 76 S.W. 586.
Accordingly the appeal is dismissed.
On Rehearing.
The motion of appellee for a rehearing is overruled.
The motion of appellant insisting that this court, instead of dismissing the appeal, should have reversed the judgment of the court below and dismissed the cause, is sustained, and the judgment rendered here June 23, 1932, will be modified accordingly. Pecos N. T. Ry. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S.W. 294.
It is not doubted that the rule obtains in this state, as is clearly stated in the majority opinion, that in cases of the merely negligent act of the defendant mental suffering is not recognized as an element of damage where there has been no physical injury. Gulf, C. S. F. Ry. Co. v. Trott, 86 Tex. 412, 25 S.W. 419, 40 Am.St.Rep. 866, and other cases. But the rule is otherwise in certain cases such as where there is negligent infraction of a contractual obligation, or where there is affirmative or active negligence attended with circumstances of indignity. Hale v. Bonner, 82 Tex. 33, 17 S.W. 605, 14 L.R.A. 336, 27 Am.St.Rep. 850; International G. N. R. Co. v. Anchonda, 33 Tex. Civ. App. 24, 75 S.W. 557; Lancaster v. Mebane (Tex.Civ.App.) 260 S.W. 252; Chicago, St. L. P. R. Co. v. Holdridge, 118 Ind. 281, 20 N.E. 837; Austro-American Steamship Co. v. Thomas (C.C.A.) 248 F. 231, L.R.A. 1918D, 873; 3 Thompson on Neg., §§ 3195, 3288. And it is believed, in view of the attending circumstances in this case, the rule allowing mental suffering, proximately resulting from a legal wrong, as an element of damages is applicable.
In the facts set forth in the plaintiff's petition there was a legal wrong, giving the right of action, of a breach of a valid contract of carriage between the passenger and the carrier, attended by circumstances of certain misconduct or negligent act of the carrier's employee. The employee refused to accept the proffered return ticket, and notified the passenger in the presence of other passengers that he must pay the fare to Alexandria when no fare was due or must leave the train, and threatened the passenger with arrest unless such order was obeyed. The carrier's duty extended not only to carry the passenger on that train from New Orleans to Alexandria on his regularly issued and paid-for return ticket without his paying further fare, but also included protection from acts of annoyance or indignity on the part of the carrier's employees.
It is believed that the passenger was entitled to be awarded damages for the sense of indignity and annoyance visited upon him by the threatened expulsion from the train, although he paid the illegal fare rather than be ejected, and although there has been no physical injury.