I. & G. N. R'Y Co. v. Underwood
| Decision Date | 26 June 1885 |
| Docket Number | Case No. 5456. |
| Citation | 64 Tex. 463 |
| Court | Texas Supreme Court |
| Parties | I. & G. N. R'Y CO. v. NATHAN UNDERWOOD. |
OPINION TEXT STARTS HERE
APPEAL from Bexar. Tried below before the Hon. Geo. H. Noonan.
Nathan Underwood brought this suit for damages for personal injuries alleged to have been sustained by him while a passenger, in consequence of defendant's negligence.
The damages claimed were:
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¦“For loss of time from his business from July 5, 1883, to filing of ¦$2,500¦
¦petition ¦00 ¦
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¦For doctors', medical and nurses' bills ¦500 00¦
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¦For bodily pain and physical and mental fear, suffering and anguish ¦$5,000¦
¦ ¦00 ¦
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¦For diminished capacity to labor, in the loss of the proper and ¦20,000¦
¦perfect use of his limbs, and his liability to future disease and ¦00 ¦
¦suffering, and in the loss of his business ¦ ¦
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Making in all the sum of twenty-eight thousand dollars ($28,000) actual damages, which the defendant is legally liable and bound to pay to plaintiff, together with exemplary damages in the additional sum of five thousand dollars ($5,000).”
The plaintiff, during the progress of the cause, abandoned, orally, before the jury, the claim for exemplary damages.
Verdict and judgment in favor of plaintiff against defendant in the sum of fifteen thousand dollars ($15,000).
A written motion was made and refused asking an examination of the plaintiff by experts, to determine the extent and permanence of his injuries.
The plaintiff, testifying on the trial, stated: “I was scalded from my abdomen down; my left leg was smashed and my right leg was broken, and my knee was hurt. My right leg is about one inch and a half shorter than my left, and it was occasioned by the accident. I have done some business since, but for four months I could do nothing. My time lost was worth two or three thousand dollars--about twenty-five hundred dollars. I paid Doctor Graves $75 and Doctor Herff $10, and for nurses $100, and for medicine $25. Five thousand dollars is a reasonable amount for mental anguish and suffering. I can hardly do any work. I could formerly do much more work than now. I can ride on horseback. I can hardly estimate my damages for the permanent injury to my leg and my diminished capacity to labor. I shall have to limp all my life, and would not have it done for the whole railroad; but if I must put it in money, I ought to have $50,000.
“I was shipping horses on the train on which I was hurt. I had three car loads. I had a partner. I had about $5,000 of capital invested in my business. I generally made from three hundred to five hundred dollars on a car load. I have shipped cattle also. I never lost any money in the business. I have shipped to points on this side of St. Louis, and averaged on these shipments about $100 on a car load.
I do not remember how many car loads of stock I shipped last year, before I was hurt. I have not shipped any horses since, but I have been in the business. My partner now does the shipping. I have had, since the accident, an interest in four or five car loads of cattle and two or three car loads of horses.”
Dr. George Cupples, a witness for defendant, testified:
Dr. Hadra, a witness for defendant, testified:
McLeary & Barnard, for appellant, that the court should have appointed experts when they were asked for, cited: Pierce on Railroads, p. 298; Schraeder v. C., R. I. & P. R. R. Co., 47 Ia., 375; Id., 41 Ia., 344.
That plaintiff could only renounce his claim for exemplary damages, in writing, they cited: R. S., art. 1186.
That the verdict was arbitrary, unauthorized, unconscionable and excessive, they cited: I. & G. N. R. R. Co. v. Benitos, 59 Tex., 326;McGray v. City of Lafayette, 43 Am. Dec., 239; C. & R. I. R. R. Co. v. McKean, 40 Ill., 218;C. & N. W. R. R. Co. v. Fellmore, 57 Ill., 265;Spicer v. C. & N. W. R. R. Co., 29 Wis., 580;Lombard v. C., R. I. & P. R. R. Co., 47 Ia., 494; Chicago West Div. R'y Co. v. Haverland, 12 Bradwell (Ill.), 561; Chicago West Div. R'y Co. v. Hughes, 87 Ill., 94;Bierbauer v. N. Y. & H. R. R'y Co., 77 N. Y., 588; Kansas Pacific R'y Co. v. Peary, 11 Am. & Eng. R'y Dec., 260; H. & T. C. R. R. Co. v. Ford, 53 Tex., 364;Potter v. C. & N. W. R'y Co., 22 Wis., 615;Goodno v. City of Oshkosh, 28 Wis., 300.
Houston Bros., for appellee, that the oral abandonment of claim for exemplary damages was sufficient, cited: Hardy v. De Leon, 5 Tex., 233;Shirley v. Byrnes, 34 Tex., 645.
That there was no error in refusing to have the examination made by experts, they cited: Schraeder v. C., R. I. & P. R. R. Co., 47 Iowa, 375; Bishop on Marriage and Divorce (4th ed)., vol. II, secs. 593 and 594, and authorities there cited.
That it would have been error to charge on the question of punitory damages, after the abandonment of the claim for such damages, they cited: Norvell v. Phillips, 46 Tex., 161;Robinson v. Varnell, 16 Tex., 382;O'Connell v. State, 18 Tex., 343.
That there was evidence to sustain the verdict, and it should stand, they cited: Miller v. Schmullen, 37 Tex., 240;Wright v. Donnell, 34 Tex., 305;Cochrane v. Winburn, 13 Tex., 150;Carter v. Carter, 5 Tex., 102;I. & G. N. R. R. Co. v. Brett, 61 Tex., 483; Teague v. State, 4 Ct. App., 147;Davis v. State, 4 Ct. App., 456; Johnson v. State, 5 Ct. App., 423; T. & P. R. R. Co. v. Hayes, Tex. L. Rev., vol. III, No. 25, p. 397; T. & P. R. R. Co. v. Garcia, Tex. L. Rev., vol. IV, No. 25, pp. 342, 343, 344.
It is unnecessary to consider whether the petition was sufficient to authorize the recovery of exemplary damages, for the claim to exemplary damages was waived on the trial and is not asserted here; the propriety of the action of the court, however, in refusing to instruct the jury as to the facts which would authorize the imposition of exemplary damages, in view of the general charge given, the amount of the verdict, and the failure of the appellee otherwise than orally, in the trial of the case, to renounce the claim for such damages, made in the pleadings, will be hereafter considered.
It not appearing that the appellant exhausted its peremptory challenges, or that, by the ruling of the court as to the qualification of the jurors McGowan and Taylor, the appellant was compelled to accept any juror that it was not willing should sit in the case, it is unimportant whether the ruling of the court in this respect was correct or not.
The appellant presented a motion requesting the court to appoint three disinterested surgeons and physicians to examine the person of the plaintiff, for the purpose of ascertaining the extent and character of his injuries, that they might testify in the case in reference thereto.
This motion stated no fact which made the granting of it necessary. It was not shown to be necessary to the full presentation of all the facts, nor was it shown that the plaintiff was unwilling to have such an examination made by any respectable surgeon or physician.
The right to have such an examination made, when it is shown to be necessary to the ends of justice, has been...
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