Texas & P. Ry. Co. v. Woodard , 1932 Tex. App. LEXIS 825 ( 1932 )

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.