247 S.W. 314 | Tex. App. | 1922
Appellant contends that certain questions asked appellee while on the witness stand had only the effect of arousing the sympathy of the jury, and were immaterial and irrelevant to any issue in the case. These questions were as to the whereabouts of appellee's children at the time the body was brought to Hillsboro, as to whether appellee's son arrived there before the funeral, and as to who accompanied appellee to the station. We do not believe that these questions were calculated to arouse the sympathy of the jury, and think that they were properly admitted. Further, these facts were all testified to without objection at another stage of the trial, and for that reason, as well as for the other, it was not error for the court to admit the testimony. G., H. S. A. Railway Co. v. Cherry,
Appellant also contends that it was an error for the court to permit appellee to testify that it was his intention to have the casket opened at the undertaking parlor at Waxahachie in order to permit the friends of the family to view the remains for the last time before proceeding with the final stage of the funeral services. We do not think such was an error. This was one of the elements of damage which the jury were entitled to consider in arriving at their verdict, and therefore such evidence was not improper.
Appellant also contends that there was no agreement for transportation on any particular car, and that appellant could and would have carried the body on the 5:47 car if the action of appellee's agent, Leatherwood, in transporting the body himself, had not prevented it. But the jury found that there was a contract for transportation on the 3:47 car for Tuesday, September 7th, which finding we think is sufficiently sup ported by the following testimony of Leatherwood:
"On Monday I phoned Mr. Grissett, who was at that time agent for the Texas Electric Railway at this place, before we were going on Monday. I let him know on Monday about 1 o'clock in the afternoon that they would want to catch the train on Tuesday afternoon. I called him up, and told him that the folks did not know how many were going, so that they had decided not to use a special car, but would use his usual local service out of there. That was 3:47 in the afternoon. He said it was all right, and would arrange for that service."
The testimony of W. J. Grissett also sup ports this finding, and is as follows: *316
"He [meaning Leatherwood] said that they wouldn't want a special car; that they had decided to take the 3:47 car north, which was a local car. I told him that I would notify the express people, and I did notify the express people that I would have the funeral party on the 3:47 car going out of Hillsboro on September 7, 1920. I didn't know that the body was going to be carried on that car. I didn't know that he had bought a ticket for the body to go on the 3:47 car, and I knew that I had sold him as ticket agent of the Texas Electric Railway. I knew that I had marked on that ticket `corpse ticket.' I knew that on the regular schedule the 3:47 car was supposed to be a local car. I knew that the local type car which was to be here at 3:47 was equipped to handle baggage such as this."
Therefore the contract being for carriage on a particular car at a particular time, appellant's failure to transport the body then and on that car constituted a breach of such contract. It was not violated by Leatherwood, as the breach had already occurred before he undertook to carry the body to Waxahachie.
Appellant also contends that the testimony of appellee, stating:
"The delay that occurred in having my wife's body to reach Waxahachie, the uncertainty as to when it would arrive, and the inability to open the casket after reaching there disturbed my mind. I was very much affected. My mind was very much disturbed and very unpleasant"
— was insufficient to justify submission to the jury or the finding by the jury of "humiliation, mental anxiety and anguish." This testimony, taken alone, would not have been sufficient, but this, coupled with a consideration of all the facts and circumstances surrounding the matter involved, we think is amply sufficient to justify both submission of the issue and the finding thereon.
Appellant also contends that the verdict rendered was excessive. Negligence having been found by the jury, appellee was entitled as a matter of law to recover the amount of damages he had sustained. Hale v. Bonner,