Houston & Texas Central Railway Company v. Will Rowell, 92 Tex. 147

GAINES, Chief Justice. The defendant in error brought this suit against the plaintiff in error to recover damages for personal injuries. He obtained a judgment, which was affirmed upon appeal. Since it is our purpose to discuss but one point, it is not necessary to make any general statement of the case. With reference to the expenses incurred by him by reason of his injuries the plaintiff testified as follows: “I am not certain of the amount of expense I was put to on account of my injuries, but it was not less than $100. My doctor’s bill was $49; my board bill $45.

I paid a doctor at LaGrange, after I left Paige, $8, and other money for medicine.” Hpon the measure of damages the court gave' the jury the following instruction: “If you find for the plaintiff, in estimating and assessing the actual damages, if any, he may have sustained, you will consider the evidence showing the mental and physical suffering he has endured, the expense he has incurred or become liable to pay, the loss of time while disabled and under treatment, and the permanent diminution of his ability to work and earn monej', if you so find.” We think this charge, was erroneous.

It was only for such expenses resulting from his injuries as were reasonable and necessary that the plaintiff was entitled to recover. It may be that if the jury had been instructed to allow onfy such expenses as the plaintiff became liable to pay, the proposition contained in the charge would have been correct, and if a more specific instruction had been desired it should have been requested. In the absence of some proof of an express promise to pay a particular sum, the plaintiff would have been liable onfy for reasonable compensation for such services as were rendered to him.

However, we do not decide the point. The charge in question goes further and instructs the jury in effect to allow the plaintiff for “the expense he has incurred.” He testified distinctly that he had paid a physician at La-Grange $8. It is clear that this expense he had incurred. We think also that the jury may have inferred that he had paid the board bill. He says, “My doctor’s bill was $49 and my board bill $45.” He seems to refer to them not as existing charges, but as charges which had existed •but which had been paid.

There was no evidence that the board bill or the amount paid to the physician at LaGrange was reasonable; and hence the case comes within the rule followed in Wheeler v. Railway, 43 Southwestern Reporter, 876, and the cases there cited. But it is insisted on behalf of defendant in error that since the only expense claimed in the petition was the account of Dr. Paige for $49, the error was harmless. But we think this is but an additional reason why the charge should be held erroneous. Probably if the instruction had limited the recovery to the expense claimed in the petition, there would have been no error.

But the prayer of the petition was “judgment for his (plaintiff’

s) damages as above set out;” and it is clear that the charge as construed by us permitted a recovery for expenses not claimed in the petition. The charge of the learned judge is most commendable for its clearness and brevity, and it is to be regretted that his attention was not called upon the trial to the state of the pleadings and evidence with reference to the expenses incurred by the plaintiff. The other points raised in the Court of Civil Appeals were satisfactorily disposed of in that court, and need not be discussed.

Counsel for defendant in error offer, in case we find that there was' error in the charge as claimed in the assignment discussed by us, to remit a sum sufficient to eliminate the two items of expense not proved to be reasonable. We therefore affirm the judgment less the sum of $53. The defendant in error will pay the costs of the appeal and of the writ of error. Affirmed on remittitur.