We adhere to that part of the opinion of the Commission of Appeals rendered in this case February 22, 1892, holding appellant responsible for the act of its conductors in refusing to receive the ticket of appellee's wife after its agent had wrongfully refused to stamp it at its office in St. Louis when presented to him for such purpose. It was the appellant, through its agent at St. Louis, that violated the contract evidenced by the ticket, by its wrongful refusal to stamp the same when presented to it; and it was the appellant, through its conductors, that wrongfully refused to accept the unstamped ticket, when this defect was attributable to its own fault and not that of appellee's wife. While appellant's conductors might have been obeying their instructions from it, yet it was the appellant that was guilty of the violation of the contract in the first instance, and it can not avail itself of its own regulations to shield it against the consequences of such violation. We think *Page 645 these conclusions well sustained by the decisions referred to in the opinion rendered by the honorable Commission of Appeals at the former hearing of this case, and to be established in this State by the decision of our Supreme Court in the case of Railway v. Mackie, 71 Tex. 491.
Upon a careful examination of the record, however, we are of opinion that the judgment rendered by the court below should be reversed for the error recognized in the opinion of the Commission as having been committed by the court below in overruling appellant's special exception to that part of appellee's petition which seeks to recover damages for his own mental suffering, and in refusing to give a special charge requested by appellant, excluding this element of damage from the consideration of the jury. In the opinion of the Commission of Appeals, the charge given by the court did, in effect, do this; but we do not so construe the charge.
In his petition, after alleging the wrongs that had been done his wife and their effect upon her, appellant added another clause, as follows:
"Plaintiff would aver, that when his wife arrived at Dallas, he met her at the train, and she was in tears and nearly distracted, and she then told him of the wrongs, insults, and indignities that she had suffered on her trip at the hands of defendant's agents, and that he took her home, and she was sick and confined in her room for a number of days and unable to attend to her duties, and the same caused your petitioner much pain and anguish, and all of such sickness, pain, and anguish was caused from the acts of defendant's agents as aforesaid, to plaintiff's damage in the sum of $5000; wherefore," etc.
We construe these allegations to be a distinct averment of the mental anguish suffered by appellee, as distinguished from that set forth in the previous allegations in his petition as having been suffered by his wife. To this clause of the petition appellant interposed a special exception, which was overruled by the court below.
On the trial of the case appellee testified, that "after my wife returned from Denison she was sick and in bed for sometime. She was confined to the room and in bed in the daytime. That he felt ashamed and bad over it. She told him the way she had been treated by the conductor between Parsons and Denison, and said it made her feel bad and ashamed."
The court's charge upon the measure of damages was as follows: "Such damages would include any additional sum over and above the price of the ticket paid out by him; and you may also, as an element of actual damages, consider the physical pain and mental anguish and sense of shame, if any, suffered and endured by Mrs. Martino by reason of the treatment by defendant's agent and conductors, returning your verdict for such sum as in your judgment is just and proper."
Appellant requested an instruction to the jury, in estimating the damages not to consider any mental anguish suffered by the plaintiff. The *Page 646 Commission of Appeals held the law to be, that appellee was not entitled to recover damage for his own mental suffering, but was of opinion that the charge of the court quoted above excluded such damages. After a careful examination of the record, we are of opinion that the jury might not have so understood the charge. The petition claimed this damage. There was evidence that such damage had been sustained. The court's charge instructed the jury, that plaintiff's damage would include any additional sum over and above the price he had paid for the ticket, and that they might also allow him the damage sustained by his wife. We believe appellant's special exception should have been sustained, and that the special charge requested by it should have been given; and we do not think that the record presents a case which will enable us to say that these errors did not operate to its prejudice, and we are therefore of opinion that the judgment of the court below should be reversed and the cause remanded for a new trial. We adhere to the opinion of the Commission of Appeals upon the other questions discussed therein.
Reversed and remanded.
Justice STEPHENS did not sit in this case.