Texas Supreme Court, 1897

Missouri, Kansas & Texas Railway Co. v. Warren

Texas Supreme Court · Decided April 5, 1897 · Gaines

40 S.W. 6; 90 Tex. 566; 1897 Tex. LEXIS 346 (South Western Reporter)

Counsel

T.S. Miller, and Stanley, Spoonts Thompson, for plaintiff in error. — The court erred in the eleventh paragraph of its charge in telling the jury, if they found in favor of plaintiff, to assess the damages at such sum as they believed would be a fair and reasonable compensation to plaintiff for the physical injuries and mental suffering, and such sum as they believed would be a fair and reasonable compensation to plaintiff for any loss of time or diminished ability to labor, and such as they believed would compensate him for his physician's bills. Said charge was erroneous in that it did not confine the jury to what they should find from the evidence, but left it to their broad and unlimited discretion. Railway v. Schrader, 1 White W. C. C., 1148. In the absence of testimony showing what was a reasonable charge for the services of the physician, appellee should not have been allowed to recover. 80 Tex. 73 . Ross Chapman, for defendant in error. — It is sufficient if the charge, taken as a whole, tells the jury that they must make their findings from the evidence, and it is not necessary for the court, in submitting each particular issue to the jury, to tell them that they must look to the evidence.

Opinion of the Court

GAINES, Chief Justice.

This is a suit for personal injuries and was brought by defendant in error against the plaintiff in error.

The petition for the writ of error presented substantially but two grounds for the writ; one upon the charge of the court, and the other as to the sufficiency of the evidence to warrant an instruction authorizing the jury, in case they found for the plaintiff, to give him damages for expenses incurred for the treatment of his injuries. When we passed upon, the application we thought, and we still think, that the question presented in the first assignment in this court was correctly decided by the Court of Civil Appeals, but we were of the opinion that the evidence was not sufficient to warrant a recovery for the charges contracted by the plaintiff by reason of the treatment of the physician. The only testimony upon that point was that of the plaintiff, which showed merely that the phj'sieian charged him $150 for his services. We thought the reasonable value of such services should have been proved. But since the writ of error was granted, the plaintiff, now the defendant in error, has filed a remittitur of $150, which was the only sum claimed for such services in the petition and which was the only sum which the evidence tended in any manner to show had been incurred on that account. This purges the error, and hence the judgment less the sum remitted is affirmed; but the defendant in error is adjudged to pay both the costs of this court and those of the appeal to the Court of Civil Appeals.

Affirmed less amount remitted.

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