Galveston, Harrisburg & San Antonio Railway Company v. William Wesch, 85 Tex. 593

GAINES, Associate Justice. This suit was brought by appellee to recover damages for personal injuries alleged to have been received while a passenger on a train of the plaintiff in error. The injuries were inflicted by a derailment, which was claimed to have been caused by the negligence of the company’s servants. The plaintiff’s collar bone was broken; but his injuries otherwise were slight. He obtained a verdict for $7500, for which the court gave him judgment.

During the progress of the trial the defendant, who was under examination as a witness, was asked by his counsel the following question: “State if you can approximate what expenses you have been at by reason of the accident and injuries received?” The question was objected to on behalf of the defendant, but the court overruled the objection and permitted the witness to answer, “About $750 or $800.” The ruling of the court was excepted to, and was assigned as error upon the appeal. The action of the court in permitting the question and answer was clearly erroneous.

The plaintiff must have known of what his expenses consisted, and should have been required to state them in detail. His answer to the question as propounded was dependent upon his opinion as to what expenses were legitimately chargeable to his injuries, and was, in effect, a conclusion upon mixed questions of law and fact. For the error of the trial court in admitting this testimony, the Court of Civil Appeals entered judgment reversing the judgment below and remanding the cause.

But in order to cure the error, the attorneys for the appellee filed a remittitur for $800, and prayed the court to set aside its former judgment and to affirm the judgment of the trial court. This was accordingly done. The appellant, who is the plaintiff in error in this court, now complains that the Court of Civil Appeals erred in allowing the remittitur and in affirming the judgment. We know of no precedent for the court’s action except the case of Railway v. Trawick, 80 Texas, 275.

In that case the plaintiff sued to recover for the loss of and injury to cattle whicfi had been delivered to the defendant company for shipment. Some of the cattle were permitted to escape from the defendant’s pens before the bill of lading was executed; others were injured in transit. In the verdict of the jury the damages for the cattle lost before the bill of lading was signed was assessed separately from the damages to those which occurred in course of transportation.

There was a stipulation in the bill of lading that the shipper should bring suit for any damage which might accrue to him for breach of the contract within forty days. This court held, that as to the damage which accrued after the execution of the written contract this stipulation applied; and that since the plaintiff had neither sued within the stipulated time, nor shown any lawful excuse for not doing so, so much of the judgment as gave a recovery for the damage to the cattle in transit was erroneous.

After a judgment reversing the judgment below and remanding the cause, the appellee was permitted to enter a remittitur of so much of the judgment as allowed a recovery of this damage, as shown by the verdict, and the judgment of the lower court was affirmed. It is to be noted in that case, that though they grew out of the same transaction, the plaintiff’s petition embraced two causes of action—the one upon an unwritten and perhaps an implied contract, the other upon a written agreement.

The recovery upon each having been distinctly specified in the verdict, there was no good reason for refusing to affirm the judgment as to the one which was not vitiated by error, when the other had been abandoned by the remittitur. Besides, the plaintiff had obtained two verdicts, and it was the second appeal in the case. It was time for the litigation-to end. On the other hand, it is expressly held in Chadwick v.

Meredith, 40 Texas, 380, that an application to file a remittitur to cure error “ comes too late after the court has acted upon the record, and the judgment has been reversed and the cause ordered to be remanded.” We think this the true rule, and that it should only be departed from under exceptional circumstances.

In some cases, in which it has very clearly appeared that the error committed by the court below affected some definite amount of the judgment only, this court has delivered its opinion suggesting a remittitur, and has held up its judgment, in order to give the appellee the opportunity to act upon the suggestion. This should never be allowed when the error may have had an influence upon the general verdict.

In the present case, the direct influence of the testimony which was erroneously admitted, was to increase the verdict in an amount not less than §750 nor more than §800 for expenses consequent upon the injuries. But it is by no means certain that it did not have a potent effect in the same direction upon the amount of damages awarded for physical and mental suffering, for loss of time, and permanent incapacity to earn money. Such damages are in their nature indeterminate, and are left largely to the discretion of the jury.

There is no measure for determining the extent of the pain or the limit of its compensation; neither is there any rule for determining with any degree of exactness the effect of a broken collar bone upon the sufferer’s earning capacity. Therefore a jury might reasonably conclude that the suffering was greater and the injury more serious and more permanent in a case in which the expense consequent thereupon was great, than in one in which it was small.

We conclude, therefore, that the remittitur of §800 did not necessarily destroy the effect of admitting the improper testimony, and that it should not have been allowed. The answer of the witness Hopkins, that “ all were nervous and apprehensive, and the effect and sensations were those of very fast speed, and what seemed to me reckless speed,” was responsive to the interrogatory and was proper testimony.

There are numerous assignments in appellant’s brief upon the charge of the court as given to the jury, and upon the refusal of special charges asked by the appellant; but it is sufficient to say in reference to them, that in our opinion they point out no reversible error. The appellant also complains of the action of the trial court, as shown by the following bill of exceptions: “ In the argument of this case to the jury, one of plaintiff’s attorneys, J. B.

Dibrell, in his opening address to the jury, stated to the jury that he would read to them portions of the opinions of the Supreme Court of Texas, for the purpose of showing them that large verdicts had been rendered against railroad companies for personal injuries; to which statement and the reading of the decisions of the Supreme Court to the jury, the defendant, by its attorneys, objected, because the jury should receive the law from the court; and the court sustained the objection as to the purpose as stated by plaintiff’s attorney in reading the opinions. And afterwards the plaintiff’s attorney, J. B.

Dibrell, read the same opinions of the Supreme Court to the jury, in two cases, showing that parties in the court below had recovered $10,000 for personal injuries inflicted by railways, and that the Supreme Court had affirmed the cases, which opinions said attorney claimed the right to read as a part of his argument; to the reading of which opinions of the court to the jury by the said attorney, J. B.

Dibrell, the defendant at the time objected, because the jury should receive the law from the court, and because the same was calculated to mislead and prejudice the jury against the defendant; which objections were by the court overruled, to which ruling the defendant, by its attorneys, excepted at the time.” We are at a loss to understand why the court refused to permit counsel to read the opinions upon the first attempt, and then allowed them to be read in the second instance.

It was the duty of counsel in his address to the jury to confine himself to the testimony bearing upon the issues of fact presented for their determination. The action of the Supreme Court-in affirming a judgment in some case of a like character was a matter as wholly foreign to that discussion as any other fact not in evidence which may have been dragged into the debate. It did not relieve the proceeding of its objectionable tendency to say the opinions were read as part of the argument.

It was the duty of the jury to assess the damages of the plaintiff from the evidence before them, and they should not be influenced by the action of other juries in giving large verdicts in other cases, or by the action of this court in sustaining such verdicts. The object of reading the opinions to the jury was doubtless to swell the damages; and it was well calculated to have that effect. We are of opinion that the court erred in its action, and that this error is sufficient to cause a reversal of the judgment. The other assignments of error question the sufficiency of the evidence to support the verdict.

These involve questions of facts, which we have no power to determine. For the errors pointed out, the judgment of the Court of Civil Appeals- and of the District Court is reversed and the cause remanded. Reversed and remanded- Delivered June 22, 1893.