City of Honey Grove v. Lamaster

• Decision Date: 08 April 1899
• Parties: CITY OF HONEY GROVE v. LAMASTER.
• Court: Texas Court of Appeals

50 S.W. 1053

CITY OF HONEY GROVE v. LAMASTER.

Court of Civil Appeals of Texas.

April 8, 1899.

Appeal from district court, Fannin county; E. D. McClellan, Judge.

Action by J. D. Lamaster against the city of Honey Grove. Judgment for plaintiff, and defendant appeals. Reversed.

Taylor & McGrady, for appellant. Hale & Hale and Gross & Gross, for appellee.

FINLEY, C. J.

This suit is brought by J. D. Lamaster against the city of Honey Grove to recover damages on account of personal injuries received by means of contact with a guy wire charged with electricity. It is charged that the city was negligent in the construction and management of the wires, and that such negligence was the proximate cause of the injury, etc. The defendant answered by general exception, general denial, and plea of contributory negligence. The trial resulted in a verdict and judgment for plaintiff in the sum of $500, from which the defendant appeals.

1. The first contention made by appellant is that its general exception should have been sustained, upon the theory that it was not alleged that the city had authority to own and operate an electric light plant. The petition alleged that the city was chartered under the general laws of the state; that it did own and operate the electric plant. The general laws of this state relating to such municipal corporations grant the authority in question. Rev. St. art. 421.

2. It is contended that the court erred in failing to give the special charge upon the issue of contributory negligence. There is no evidence supporting the plea of contributory negligence, and the court did not err in refusing to submit such issue.

3. It is assigned as error that the court permitted testimony, over the objection of the defendant, from mortuary tables showing the life expectancy of a person of plaintiff's age and physical condition. The injury sustained by the plaintiff did not result in his death nor in the entire destruction of his earning ability. The injury was principally to one hand, and only partially affects the ability of the plaintiff to prosecute the business of life and earn money. In the case of Railway Co. v. Douglass, 69 Tex. 694, 7 S. W. 77, it is held that proof of life expectancy is not legitimate evidence in a case where there has been only partial impairment of ability to earn money. In the case of Railroad Co. v. Nelson, 49 S. W. 710, this court followed the Douglass Case, and held admission of such evidence error. It is contended that the holding in the Douglass Case has been overruled by the courts of civil appeals in the cases of Railway Co. v. Morgan, 46 S. W. 672, and Railway Co. v. Cooper, 2 Tex. Civ. App. 42, 20 S. W. 990, and that in the latter case the supreme court refused a writ of error. The decision in the Morgan Case, by the San Antonio court, is based upon the decision of the Galveston court in the Cooper Case and the fact that the supreme court refused a writ of error therein. On examination of the Cooper decision, we find that the court of civil appeals found the fact to be that the plaintiff had sustained injuries which wholly disabled him from ever prosecuting his occupation, which was the only business for which he was qualified. In discussing the question of the admissibility of the evidence, the court does not consider it from the standpoint of total destruction of earning ability only, but expresses the opinion that the evidence would be admissible in case of only partial impairment of earning ability, where the impairment was shown to be permanent. If there was a total destruction of the ability to earn, as found to be the fact by the court of civil appeals, then the evidence was admissible, under the rule laid down in the Douglass Case. It was...