Hill v. Gulf, Colorado & Santa Fe Railway Co. ( 1891 )

The absence of a statement of facts in this case, it having been stricken from the record, conclusively determines every question raised by the assignments of error against the appellants.

The omission of the court to instruct the jury that shame, mortification, mental pain and suffering constituted elements of actual damage in a case where such facts were proved would have been error provided a wrongful expulsion had been shown. The correctness of such a charge would depend upon the facts. Without facts to support it, it can not be said that such a charge should have been given. We have no way to determine whether the proof would have justified the giving of the charge, and can not say there was error in the omission.

The court refused to instruct the jury at the request of plaintiffs that the punching and cancellation of the plaintiff's ticket by the conductor on the day after it expired was a waiver of defendant's right to refuse her passage on the train. Error is assigned to the ruling. If the proposition made by the requested charge is sound in law, it will be seen at once that there must have been facts to predicate it upon to make it a correct charge in the case. In the absence of a statement of facts we can not say the charge would have been applicable to any proof made.

The same rule must also be applied to the requested charge refused by the court, that if plaintiff Mrs. Hill was liable to expulsion from the train such expulsion at any place other than a depot or a, regular stopping place would be illegal. Without the facts we can not say such a charge should have been given. To warrant the giving of the charge there must have been some evidence tending to show that plaintiff Mrs. Hill was ejected from the train and at a place other than a regular stopping place.

The assigned error that the verdict of the jury is greatly inadequate to the injury proved, for obvious reasons can not be sustained. So far as we can determine there was no evidence of injury, except such as would be presumed in support of the verdict. Cotula v. Goggan, 77 Tex. 32; Ross v. McGowen,58 Tex. 607. There were no admissions in the pleadings of defendant, only a plea of general denial; no bill of exceptions relating to testimony, and there is nothing in the record informing us of any fact proved on the trial. We can not criticise the amount of the verdict. We have heretofore considered alleged errors in the ruling of the court inomitting in its charge instructions supposed to be necessary and in refusing certain charges.

There is an assignment of error which requires us to examine another question. It is insisted that the "court erred in the first clause of the general charge in relation to plaintiff's railway ticket and in refusing charge No. 1 asked by plaintiff, which stated the law of the case." No error is pointed out in the assignment and we might refuse to consider it because too general and indefinite. The charge given and the one refused will be found in the statement of the case made by us.

What has been said above concerning refused charges will apply to the refused charge referred to in this assignment. There are no facts for the charge to apply to so far as we know, and therefore we can not say the charge should have been given. Admitting that there may have been error in the general charge complained of, a question we do not decide, looking to the pleadings and the verdict we are unable to see where it in any wise affected the verdict injuriously to the plaintiffs. There being no statement of facts the court's charge was abstract, and not being upon an issue authorized by the pleadings can not be revised by an appellate court. The general rule is that an appellate court will not revise charges given or refused where there is no statement of facts. The exception is where the error in "the charge is so glaringly apparent when taken in connection with the pleadings and the verdict as to leave no doubt but that the finding of the jury was controlled by the improper instructions." Ross v. McGowen, 58 Tex. 607. An exception can be found in a case where the charge is upon an issue not made in the pleadings and the verdict is evidently upon such issue. Anding v. Perkins, 29 Tex. 353; Best v. Alford, 22 Tex. 399; Railway v. Edwards,75 Tex. 334; Railway v. Moore, Id., 643; McGaughey v. Bendy, 27 Tex. 535.

We do not find the case at bar to be an exception. The finding of the jury was warranted by the pleadings, was not outside of the issues made, and though there may have been abstract error in the charge it is not shown to have controlled the verdict. Under the charge as given the jury rendered a verdict for plaintiff for $5.25, which clearly shows that any error that might have been contained in the general charge in reference to plaintiff's ticket (as stated in the assignment) could not have influenced the jury to believe that she was not entitled to recover something under the charge as given. The measure of damages is a different subject and has already been considered.

We are therefore compelled to hold, there being no error as assigned determinable by us in the absence of a statement of facts, that the judgment of the court below must be affirmed.

Affirmed.

Adopted March 27, 1891.