At the special instance of appellee's counsel, in addition to the findings in our opinion, we find our further conclusions of law and fact, as follows:
In August, 1890, appellee was afflicted with rheumatism, and had been to Hot Springs, Arkansas. He returned to his home at Abilene, Texas, about the middle of August. While on the platform at Malvern, Arkansas, on the evening of his departure, and as he was about to enter the car, he fell and hurt himself, and was assisted on the sleeper of the Pullman Palace Car Company, where he bought a ticket on such sleeper from *Page 763 the conductor for one lower berth from Malvern, Arkansas, to Abilene, Texas. Before buying the ticket he informed the conductor of appellant company that he was suffering with rheumatism, and would have to lie down, and wanted his berth for that purpose. His berth was made down about 9 o'clock at night, at the time other passengers had their berths fixed, and he occupied it until his arrival at Fort Worth, Texas, when he got out to get some coffee. While he was out, the berth in the sleeper was made up by the porter, and when appellee returned he remonstrated with the porter and with the conductor of appellant company, and claimed the right under the contract to have his berth made down as a bed until he arrived at Abilene. The conductor claimed that the contract only gave him the right to the berth as a bed at night, but that it was required by the company to be made up during the day and fixed for seats for passengers.
In the conflict of testimony on this point, we find from the verdict, and in deference thereto, that the appellee had an agreement with the conductor for his berth to be made down as bed from Malvern, Arkansas, to Abilene, Texas, and that when the bed was made up during his absence, and the servants of appellant refused to replace it as a bed for appellee to lie upon, it was a violation of the contract. The conductor courteously explained to appellee his orders from the company upon the subject, and told appellee that the best thing he could do for him, under the circumstances, was to move the seats closer together. The seats were then moved about three inches closer together, and after this no further complaint was made to the conductor or other employes of appellant by appellee. During the remainder of the trip appellee suffered much physical pain from his rheumatism, and became sick and vomited by reason thereof; but there is no evidence of any mental suffering. That any one suffering from rheumatism in the legs will suffer much less if the legs can be kept on a level with the body than if the legs are hanging down, and there was testimony tending to show that appellee, by reason of not having his berth made down as a bed, had to ride with his feet and legs hanging down; but the testimony does not satisfactorily show why appellee, with the seats pulled out as above mentioned, was necessarily compelled to ride with his feet and legs hanging down.
Appellee was suffering from rheumatism, intensified by his fall on the platform at Malvern, Arkansas, when he boarded appellant's car. We find difficulty in determining from the evidence the extent to which his physical suffering was aggravated by reason of the refusal of the appellant to furnish him a berth made down as a bed, from Fort Worth to Abilene; and the testimony does not disclose whether or not suffering and consequent damage could have been avoided or lessened by leaving the car and taking another, either at that time or a different time, when he could have procured a bed. By the rules of the company, the berths *Page 764 were only made down as beds at night, unless a passenger should buy a ticket for a whole section; and appellee would have bought a ticket for a whole section if he could have thereby secured it made down as a bed, but we find from the verdict that this was not mentioned.
There was no evidence of any unkind or harsh treatment on the part of the servants of the company (appellant), but simply a disagreement between the parties as to the terms of the contract; and outside of a refusal on the part of the conductor to have the berth made down as a bed, the employes of appellant did what they could for the comfort of appellee.
We find that the verdict and judgment are excessive, and in the event appellee is entitled to recover, under the above findings, a majority of the court finds that the same is excessive to the amount of $1150.
Conclusions of Law. — 1. We find that the charge of the court below was erroneous in submitting to the jury the question of mental suffering as an element of damage, as fully set out in our original opinion, as there was no testimony showing any mental anguish or suffering, and we think that the charge submitting the same to the jury was erroneous and misleading. For this reason, we are of the opinion that the judgment should be reversed and the cause remanded.
2. In the event the Supreme Court should grant an application for writ of error, we have at the instance and on motion of appellee found our conclusion of facts, so that the same, if desired, may be considered by that court, if it should not agree with the views expressed in our opinion and the disposition made of the case.
The motion for rehearing is overruled.
Motion overruled.