119 S.W. 107 | Tex. App. | 1909
This is a suit based on the breach of a contract to safely transport appellee from Pittsburg, Pennsylvania, to Los Angeles, California. The breach alleged was a derailment of a train on appellant's railroad and the consequent injuries inflicted on appellee. There were two counts in the petition, one basing the desired recovery on a breach of contract and the other on a tort, but the issue of breach of contract to safely transport only was submitted to the jury. The trial resulted in a verdict and judgment for appellee for $2,500. This is a second appeal of this case, the opinion in the former being reported in 49 Texas Civ. App. 106[
It was held in the opinion on the former appeal of this case that an action of tort could not be sustained by appellee, but that she must base her cause of action on a breach of contract of carriage. While the amended petition, filed after the cause had been remanded, contained two counts, one alleging a breach of contract and the other a tort, the court submitted the case on the breach of contract alone, being guided by the opinion of this court. It is insisted through the first assignment of error that the court should have sustained exceptions to the count alleging a breach of contract because it did not contain any allegations of damages suffered by the appellee by reason of a breach of the contract.
The petition, after setting out that a contract had been made by which appellant and other railroad companies had agreed to safely transport appellee from Pennsylvania to California, and a breach of the contract by reason of a negligent derailment of the car in which she was riding, sets out in detail the injuries received and the damages incurred. The proposition of appellant is that "Actions which arise from the breach of some contract entered into by a railroad do not sound in tort, but are actions strictly for the breach of the contract, but when the two blend and the action which arises is founded both on the negligent breach of a public duty and a breach of the contract to safely carry, all damages for personal injuries sound in tort and can only be sued for in tort, and the only damage which can be recovered for the breach of the contract to safely carry is the money expended for the ticket, and the money lost by loss of time, and additional expenses, etc." From which rather complicated proposition, considered together with the second assignment of error, we gather that the complaint is that appellee could not recover for the impairment of her ability to earn money. The same points were presented on a former appeal, and it was held: "The allegations present a case where there is an overlapping of a contract and a tort, where the contract of carriage is undisputed, and all the facts essential to constitute the tort show at the same time a breach of contract. It is a case where an action as for a tort, or an action as for a breach of contract, may be *197 brought by the same party, on the same state of facts." In cases of a breach of contract of carriage, the injured party is entitled to all such damages as may fairly and reasonably and naturally arise from the breach, or such as may reasonably be supposed to have been in contemplation of both parties at the time the contract was made as the probable result of a breach of the contract. The only question then presented is, Was the impairment of appellee's earning capacity a natural and proximate result of the breach of contract to safely carry, or was it in contemplation of the parties when the contract was made? We think it clear that the question must be answered in the affirmative. The natural and probable result of a derailment of the train was injury to the passengers, which injuries would probably result in impairing the earning capacity of any one of them.
While diminished capacity to earn money can be considered as an element of damages in cases of this character, there must be some evidence of the capacity to earn it to justify an instruction to the jury to consider such element in arriving at their verdict. (Gulf, C. S. F. Ry. v. Gordon,
In the case last cited there was some evidence of the injured party having a vocation at which money might have been earned, and the court held: "In order to authorize this element of damage to be submitted to the jury there should be evidence tending to show what was the earning capacity before the injury and the extent to which it had been affected."
The third and fourth assignments of error are met by decisions of this court which hold adversely to the contentions of appellant. (Atchison, T. S. F. Ry. v. Sowers,
No bill of exceptions was reserved to the refusal to continue the case, and such refusal will not be revised even though the record shows that exception was reserved to the refusal. (Campion v. Angier,
Because of the error in the charge the judgment is reversed and the cause remanded.
Reversed and remanded.
If there had been any evidence that appellee had ever kept house for her son or any one else, that she had ever made up her own bed, or even superintended a servant in attending to household duties, there might be something upon which to base a speculation as to her earning capacity. But no such evidence was offered. Appellee was the only witness who referred to her earning capacity. She swore: "After the accident I was utterly incapacitated to earn a living. Before the accident in Pittsburg I did not do anything in regard to domestic duties. I looked after clothing, kept it attended to. I did not have a household." She no doubt referred to her own clothing that she attended to, and upon this must be based her claim for damages for impaired capacity to earn a living. It does not appear that her ability to attend to the clothes was impaired. Our conclusion, that such testimony did not form a sufficient basis to justify a submission of the issue of impaired earning capacity to the jury, it is contended is in conflict with a decision based on proof that the woman injured was earning her own livelihood and was completely disabled. There is no similarity between the two cases, and each must stand or fall upon its own facts. The motion for rehearing is overruled.
Overruled.
Chief Justice James did not sit in this case.