1 S.W.2d 602 | Tex. Comm'n App. | 1928
This is a personal injury suit brought by defendant in error against plaintiff in error, tried to a jury, resulting in a verdict and judgment in favor of the plaintiff for $5,000,- which was affirmed by the Court of Civil Appeals for the Fourth District. 294 S. W. 273.
At the threshold of the ease we are asked by defendant in error to sustain a motion to dismiss the appeal to the Court of Civil Appeals. We find no error in the action of the court in that respect.
It is first complained by plaintiff in error that defendant in error’s petition is subject to a general demurrer. The proposition is that:
“In a suit for damages for personal injuries, where the plaintiff alleges that such injuries directly resulted from'the negligence of the operator of an automobile owned by the defendant and also alleged that such automobile was being operated by the agent, servant, or employee of defendant, without in any manner stating that the operator of such truck was acting within the scope of his employment at the time of the alleged acts of negligence, the trial court should sustain the general demurrer to such petition, and his refusal to do so constitutes error of such .nature as to require a reversal of the judgment rendered in such cause.”
We cannot sustain this proposition. The rule is that, as against a general demurrer, every reasonable intendment will be indulged in favor of the sufficiency of the pleading. The allegation that the defendant’s truck was being operated by its agent, servant, or employee is sufficient, and implies that, at the time, the agent, servant, or employee was acting within the scope of his employment. What one does through an agent, he does himself. The omission complained of could only be reached by a special exception.
The case was submitted upon special issues, among which was:
“(11) What amount of damages, if any, would, if¡ paid now, reasonably compensate the plaintiff for such injuries, if any, as you may find from the evidence to have been sustained by him as alleged in plaintiff’s petition?”
In this connection, the court instructed the jury as follows:
“In considering such damages, if any, you may take into consideration pain, if any, suffered or to be suffered by the plaintiff as a direct result of such injuries, if any, together with necessary and reasonable expenses, if any, incurred or to be incurred by plaintiff for physicians’ services, hospital bills and medicines as a direct result of such injuries, if any, together with loss of time, if any, up to the present, so resulting.”
ifhe defendant duly objected to this instruction, “because there is no sufficient evidence before the jury as to the reasonable amount of any future necessary expenses to be incurred by plaintiff for physicians’ services and (or) hospital bills and (or) medicines.” '
It is insisted by defendant in error that we should not consider the assignment presenting this point, because such alleged error should not be reviewed in the absence of an assignment complaining of the exces-siveness of the verdict by reason of the error. But this objection is not tenable. There is no question of “excessiveness,” as that term is used in the statutes and decisions involved in this case. Whether or not a verdict is excessive is a question of fact over which the Supreme Court has no jurisdiction (Horton v.' Benson [Tex. Com. App.] 277 S. W. 1050), and, moreover, exeessiveness of itself is recognized by statute (Rev. St. 1925, art. 1862) as error for which a reversal may be had if not cured by remittitur. The Supreme Court can only review questions of law. Its right and duty to review a question of law duly presented cannot be denied because of the failure of the complainant to present to it another question wholly of fact over which it has no jurisdiction, even though it grew out of the error of law. The nature of the error here complained of is such that any recovery whatever for the elements mentioned
So that there is no need of an attack for excessiveness as a means of showing harm; it is shown, presumptively, by the error. To be sure, in weighing the pi’obab-le effect of an error, the court will consider the nature of the error and the entire record (Bell v. Black-vsell, supra) relevant so far as to determine whether or not there was probable injury — ■ that is, to support or overcome the presumption of harm arising from the error assigned. But there is no necessity for two assignments to present one error.
While the cases just cited are not instances of error committed in the charge, nevertheless the same rule applies to cases of that kind. See Emerson v. Mills, 83 Tex. 388, 18 S. W. 805; Taylor, etc., Co. v. Warner, 88 Tex. 642, 32 S. W. 868; Weisner v. Railway Co. (Tex. Com. App.) 207 S. W. 904; Texas, etc., Co. v. Jones (Tex. Com. App.) 243 S. W. 980; Eastern, etc., Co. v. Baker (Tex. Com. App.) 254 S. W. 933; Humble, etc., Co. v. McLean (Tex. Com. App.) 280 S. W. 557.
The record appears to support plaintiff in error’s contention that there was no evidence to justify the instruction given. Indeed, the Court of Civil Appeals upon this point says:
“The evidence was that appellee would require medical attention and observation for a period of from two to six years, but there was not even a remote surmise in the evidence as to the probable reasonable cost of such treatment. * ⅜ ⅜ There was no evidence, either, that appellee would likely be required to incur hospital expenses, referred to and authorized in the charge complained of.”
That court conceded that the charge might be technically erroneous, but was of the opinion that it was not substantially so, saying “it did not direct the jury to award damages for hospital or medical fees, for it was modified by that familiar and useful, and much used and abused, phrase ‘if any.’ ” We cannot agree with this reasoning. Of course the charge did not summarily direct- a finding for these items, -but it expressly authorized their consideration, and necessarily their inclusion, in the answer to issue No. 11, inquiring the amount of damages. We^ cannot assume that the jury disregarded the permission thus given them, because there was no evidence to support such a finding, but, on the contrary, the court, whose duty it is to submit such issues only as are raised by the pleading and the evidence, having authorized the consideration and inclusion of these items, the jury may have done so, and, in the absence of a showing to the contrary, such will be the presumption. We are unable to say the jury did not do what they were expressly authorized to do. If they did consider such-items and include them, it was error. Whether they did or not being at least doubtful, a reversal mustv follow.
It is well settled that no recovery can be had of damages for those things which do not result necessarily from the act complained of, in the absence of proof of the loss or injury, and the reasonableness, extent, or value of the element or item, as the case may be. Stich principle is fundamental. It has-been applied frequently in cases involving a recovery in personal injury cases for lost time, diminished capacity to earn money, doctor’s bills, medicine, and the like. See T. & P. Ry. Co. v. Curry, 64 Tex. 85; International, etc., Co. v. Simcock, 81 Tex. 503, 17 S. W. 47; Galveston, etc., Co. v. Thornsberry (Tex. Sup.) 17 S. W. 521; Missouri, etc., Co. v. Warren, 90 Tex. 566, 40 S. W. 6; Wheeler v. Tyler, etc., Co., 91 Tex. 356, 43 S. W. 876; Houston, etc., Co. v. Rowell, 92 Tex. 147, 46 S. W. 630; Missouri, etc., Co. v. Reasor, 28 Tex. Civ. App. 302, 68 S. W. 332 (writ refused).
It is unnecessary for us to pass upon the-assignments complaining of the misconduct of the jury, since such matters will probably not arise upon another trial.
For the error discussed, we think the judgments of both courts below should be re versed, and the cause remanded for another-trial.
Judgments of the district court and the Court of Civil Appeals-both reversed, and cause remanded to the-district court, as recommended by the Commission of Appeals.
We approve the holding of the Commission-of Appeals on the questions discussed in its-opinion.
