
    HOUSTON & T. C. RY. CO. v. FOX et al.
    (No. 2618.)
    (Supreme Court of Texas.
    May 13, 1914.)
    1. Evidence (§ 317) — Hearsay — Declarations of Parties.
    In an action for damages for personal injuries to plaintiff’s wife while she was a passenger on defendant’s train, declarations by plaintiff to others that his wife had been injured on a trip were hearsay and inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 11744-1192; Dec. Dig. § 317.]
    2. Appeal and Ekeob (§ 1050) — Harmless Error — Admission of Evidence.
    Where the proof of the accident and injury rested solely upon the testimony of plaintiff’s wife, and the hearsay statements of the husband corroborated her testimony, the admission of those statements in evidence was prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dee. Dig. § 1050.]
    3. Damages (§ 166) — Evidence—Possibility of Injury.
    The admission of testimony by a witness for the defendant on cross-examination that it was conceivable that plaintiff’s wife had received the injuries of which she complained, although he found no such injuries at the time he examined her,for life insurance after the accident,. was erroneous, as permitting plaintiff to show á possibility of injury as a basis for the. recovery of damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 478, 479, 481; Dee. Dig.. § 166.]
    4. Witnesses (§ 414) — Statements of Injured Person — Recent Fabrication — Corroboration.
    Where the defendant introduced evidence that plaintiff’s wife made no complaint of the injuries for which recovery was sought, for the purpose of showing that her claim was a recent fabrication, plaintiff can introduce statements by his wife to others at about the same time, which tended to prove the occurrence of the accident and the injury.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. § 414.]
    5. Witnesses (§ 414) — Statements oe Injured Person — Recent Fabrication — Corroboration.
    Such statements should be confined to those showing the occurrence of the accident and the resulting injury; and statements as to the circumstances of the accident, including the time and manner in- which plaintiff’s wife was injured, are inadmissible.
    ¡ . [Ed.-Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. § 414.]
    6. Evidence (§ 220), — Admissions—Injuries to Passenger — Demand eor Settlement.
    In an action for injuries sustained by plaintiff’s wife while a passenger on defendant’s train, evidence that the plaintiff had made no demand for settlement before instituting suit is immaterial, since no demand was necessary, and its exclusion was proper.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 771-785; Dec. Dig. § 220.]
    Error to Court of Civil Appeals of the Fifth Supreme Judicial District.
    Action by R. D. Fox and another against the Houston & Texas Central Railway Company. A judgment for the plaintiff against the Houston & Texas Central Railway Company was affirmed by the Court of Civil Appeals (156 S. W. 922), and the railway company brings error.
    Judgment of the trial court and of the Court of Civil Appeals reversed, and cause remanded to the district court.
    Baker, Botts, Parker & Garwood, of Houston, for plaintiff in error. Evans & Carpenter, of Greenville, for defendants in error.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      Par other cases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   BROWN, C. J.

Judge Talbot made a very clear statement of the facts disclosed by the evidence which we adopt as follows: “Ap-pellee Fox brought this suit against the Gulf, Colorado & Santa Fé Railway Company and the appellant, Houston & Texas Central Railway Company, to recover damages for personal injuries sustained by his wife, Mrs. Mary Fox, while she was a passenger en route from Celeste, Tex., to Bertram, Tex. Each of the defendants answered by general demurrer, general denial, and pleas of contributory negligence on the part of the ap-pellee’s wife. A jury trial resulted in a verdict and judgment in favor of appellee against the appellant for the sum of $10,000, and in favor of the Gulf, Colorado & Santa lié Railway Company. From the judgment against it the appellant appealed. "No question is raised about the' pleadings, and further statement of them is unnecessary. The evidence is sufficient to show that on or about the 22d day of December, 1910, Mrs. Fox, ap-pellee’s wife, bought a through ticket at Celeste, Tex., entitling her to passage from that place over the road of the Gulf, Colorado & Santa Fé Railway Company to Dallas, thence over appellant’s road to Hearne, Tex., where Mrs. Fox changed cars to continue her journey. As the train approached Hearne, which was about 2 o’clock in the night, the station was announced and the train stopped. Mrs. Fox, accompanied by her little boy, about 10 or 11 years of age, arose from her seat and started to leave the train. After taking a step or two toward the car door, the train was negligently moved with a sudden jerk or lunge forward and then backward almost at the same instant of time, which threw Mrs. Fox off her balance and to the floor of the car, seriously injuring her. She testified: T was thrown down, and I fell forward in kind of a careen. I lay there some little bit of time. I felt a severe pain strike me, especially in the small of my back, and it seemed to me like it run all over me, and it seemed to me like it hurt me all over; I lay there for some bit of time, kind of numb or something; at the same time I didn’t hardly realize what was going on for some little bit of time; my little boy came to me, and he had hold of me the first thing I knew, and he says “Ma, are you hurt?” I told him * * * I was nearly killed.’ Mrs. Fox further testified that her son helped her up, and that they went out of the car and into the station house, where she stayed until about 11 o’clock forenoon of that same day, when she took another train and continued her journey to Bertram, still suffering from her injury. Mrs. Fox was 51 years of age at the time of the accident, and was a strong and vigorous woman for her age.” The Court of Civil Appeals affirmed the judgment of the trial court, from which judgment the writ of error was granted.

The plaintiff was permitted, over proper objections, to prove by W. P. Byers that the plaintiff told him (Byers) that: “Mrs. Fox got hurt and was not in good health; then when she got hurt she was on á visit somewhere.” Over like objections of defendant J. B. Ellison testified that “in the spring of 1911 he saw and talked to Fox about selling him some liniment,” and “plaintiff said he wanted the liniment, as his wife had taken a.trip and got hurt and wanted liniment.” This evidence tended to corroborate Mrs. Fox in her statement of the accident and injury. It was hearsay pure and simple, and in this state of the evidence was material; therefore the error of admitting it is reversible error. 'The facts of the accident were proved by Mrs. Fox only, and no other person on the train is shown to have known of the severe lurching of the train. The jury would have been justified in finding against her evidence. The effect of both and each statement was to corroborate Mrs. Fox’s evidence.

Dr. Pierson was a witness for defendant, and testified that he made examination of Mrs. Fox on her application for life insurance, and on cross-examination plaintiff’s counsel propounded this question: “She [Mrs. Fox] may have been 'suffering some pain at that time from the hurt she had that might have afterwards resulted ih the condition she is in now?” The witness answered, “It is conceivable, I suppose.” Counsel for defendant moved to strike out the question and answer, which motion the court overruled. It would be useless to discuss the- proposition that the answer of Dr. Pierson could prove nothing more than that it was barely possible for such result to follow. The rule settled in this court is: “To justify the assessment of damages for apprehended future consequences of a present injury, it is not enough that such consequences may occur, but there must be a reasonable probability — that is, it must be reasonably certain that such consequences will ensue.” G., C. & S. F. Ry. Co. v. Harriett, 80 Tex. 82, 15 S. W. 558. Also Lentz v. City of Dallas, 96 Tex. 267, 72 S. W. 59; G., H. & S. A. Ry. Co. v. Powers, 101 Tex. 164, 105 S. W. 491.

The error in admitting the declarations of plaintiff and the grosser error of permitting the proof of possible injurious results require a reversal of the judgments of the district court and of the Court of Civil Appeals.

The effect of the defense was to charge Mrs. Fox with having fabricated the case, and defendant sought to sustain, by the evidence of the employés on the train at the time, that they knew nothing of the occurrence when it occurred, and that Mrs. Fox did not mention the fact at times and under circumstances when she should have done so, and plaintiff sought to sustain her under the rule stated in Wigmore on Evidence, vol. 2, § 1129, as follows; “The charge of recent contrivance is usually made, not so much by affirmative evidence, as by negative evidence that the witness did not speak.of the matter before, at a time when it would have been natural to speak; his silence then is urged as inconsistent with his utterances now, i, e., as a self-contradiction. The effect of the evidence of consistent statements is that the supposed fact of not speaking formerly, from which we are to infer a recent contrivance of the story, is disposed of by denying it to be a fact, inasmuch as the witness did speak and tell the same story. This use of former similar statements is universally conceded to be proper; though occasionally it is difficult to apply the principle to the facts.”

The defendant proved by Fizer that Mrs. Fox stayed at his house the night of December 23, 1910 (the next night after she claimed to have been injured), and that Mrs. Fox spoke of having been in good health for years, and seemed then to so be. Spoke of the long time she had to “lay over” at Hearne. At family prayer said she had been “fortunate in not having any accident on her trip.” This witness was corroborated by other witnesses. Defendant said in effect, Because you did not tell of your injuries and the accident at McNeil, you are guilty of having manufactured the story. To which'Mrs. Fox replied by witnesses, “I told it to my sister Mrs. Gox the next day at Bertram,” and made proof by Mrs. Cox and others that she did relate the facts of the accident. Defendant proved by a number of the neighbors of Mrs. Fox (the names are unimportant) that when Mrs. Fox returned to her home they met her and associated with her as usual with neighbors, and that Mrs. Fox did not speak of the accident at Hearne, 'or of any injury, until a short time before this suit was instituted. Plaintiff testified that he met his wife when she arrived at Celeste on her return from her visit, and she told him of the occurrence and her injuries.

Defendant proved by Dr. Pierson that after the date of the accident he examined Mrs. Fox on her application for life insurance, and that she answered in substance that she was in good condition, and did not say anything of the occurrence at Etearne. Plaintiff proved that Mrs.. Fox applied to one Curtis, for life insurance, and told him that she had been hurt. That was the application on which Dr. Pierson examined her. Defendant says because Mrs. Fox did not speak of her, injuries at McNeil to the Fizer family, at her home to her neighbors, nor to Dr. Pierson, she must be discredited. When she offered proof that she did speak to her sister at Bertram, to her husband at Celeste, and to Curtis, the agent who took her application, her statements are objected to as self-serving, therefore not admissible. If the defendant had not charged Mrs. Fox with fabricating her claim, such declarations would not have been admissible. Defendant’s proposition is that because Mrs. Fox did not speak of the accident on certain occasions, she is guilty of recent contrivance, and that it cannot be proved that she did speak of the matter at another time because her declarations are self-serving. There is much authority directly on the question, for courts uniformly hold that under such circumstances her declarations as to the occurrence of the accident were admissible if made near the time when it is alleged and proved that she should have spoken, but did not - speak. It is claimed that Mrs. Fox’s declarations were not admissible. The admissibility of that evidence can be determined by stating the issue to be proved or disproved. The defendant below asserted that there was no accident nor injury to Mrs. Fox; that she had fabricated the whole matter. To sustain the charge evidence was offered to prove that on different occasions when Mrs. Fox should have spoken of the accident she was silent. To meet these charges she proved that at a time near to that mentioned she did speak of the fact of the accident to her, giving the time and place. By this evidence the issue of fabrication was met. But in addition to the fact of the injury her statements of circumstances of the accident, including the manner in which she was injured, were admitted over the objections of the defendant. The declarations which went beyond the facts of the accident were not relevant to the issue of fabrication^ -and should not have been admitted; they were self-serving declarations, therefore inadmissible. We will not undertake to analyze the evidence and state the portion not admissible, but the trial court at another hearing will confine the declarations of Mrs. Fox to such as tends to prove the occurrence of the accident and injury. It is difficult to be specific on this question, and much must be left to the trial judge.

The case of Ætna Insurance Company v. Eastman, 95 Tex. 34, 64 S. W. 863, is not in conflict with our decision in this case. In that case the declarations of Eastman were in support of his evidence given at the trial of an issue of fact upon which his recovery depended. Mrs. Fox’s declarations as proved simply met tie charge of recent fabrication, and were called for by the evidence offered by the defendant. The distinction is plain. It is unnecessary for us to comment on the Eastman Case.

The plaintiff in error complains of the action of the trial court in refusing to permit it to prove by plaintiff when testifying that he made no demand of the railroad company for settlement before instituting the suit. No obligation rested upon plaintiff to make a demand before instituting suit; the assignment does not present an instance in which the plaintiff failed to speak when he was in a position that called upon him to make his claim known; it was not the same as the position of Mrs. Fox when it was charged that she failed to speak of the accident. If admitted, the fact that plaintiff made no claim before suit would not tend to prove any fact material to the defense.

The judgments of the Court of Civil Appeals and of the district court are reversed, and the cause is remanded to the district court of Hunt county.  