Stamford Oil Mill Co. v. Barnes

• Decision Date: 24 April 1909
• Citation: 119 S.W. 872
• Parties: STAMFORD OIL MILL CO. v. BARNES.
• Court: Texas Court of Appeals

119 S.W. 872

STAMFORD OIL MILL CO. v. BARNES.

Court of Civil Appeals of Texas.

April 24, 1909.

Appeal from District Court, Jones County; Cullen C. Higgins, Judge.

Action by English Barnes against the Stamford Oil Mill Company. From a judgment for plaintiff, defendant appeals. Reversed.

W. T. Andrews, for appellant. H. G. McConnell and G. L. Davenport, for appellee.

SPEER, J.

This is an action by English Barnes, a minor, by his father, W. T. Barnes, as next friend, to recover damages against the Stamford Oil Mill Company for personal injuries, and is a companion case to cause No. 6,081, this appellant versus Barnes (this day decided in an opinion by Mr. Justice Dunklin) 119 S. W. 871, which opinion see for a fuller statement of the case. There was a trial before a jury, resulting in a verdict for the plaintiff, from which the defendant has appealed.

Many of the questions raised on this appeal are disposed of by us in the case above referred to and need not be again discussed. We have reached the conclusion in this case, however, that the judgment must be reversed and the cause remanded for errors in the charge of the court. In submitting the measure of appellee's recovery, the court instructed the jury as follows: "In case you find for the plaintiff, you will, in estimating his damages, take into consideration the proof, if any, showing mental and physical pain and suffering sustained by him in the past by reason of his injuries, and also any mental or physical pain he may sustain in the future, resulting from such injuries, if any, and also any reduction of his power or capacity to earn money during the course of his life after he shall attain the age of 21 years, if any, and also any reduction of his power or capacity to pursue the course of life he might pursue after he arrives at the age of 21 years but for such injuries." The complaint of this charge is that it is misleading and calculated to authorize the jury to allow a double recovery. That injuries which would affect appellee's power or capacity to earn money during the course of his life after he shall attain the age of 21 years might also, and perhaps necessarily, affect his power or capacity to pursue the course of life he might pursue after he arrives at the age of 21 years but for such injuries, seems apparent, and is so decided in the cases of I. & G. N. Ry. Co. v. Butcher, 98 Tex. 462, 84 S. W. 1052, and M., K. & T. Ry. Co. of Tex. v. Nesbit, 40 Tex. Civ. App. 209, 88 S. W. 891. The present charge, however, does not so expressly authorize the jury to allow damages for these things as separate elements, as do the charges in the two cases referred to, and we have considered whether or not a distinction ought to be made on this account; the present charge, as will be seen, merely directing the jury that in estimating appellee's damages they will take into consideration the variously named items. We have finally reached the conclusion that no distinction ought to be made, and that the charge under review is subject to the criticism that it is calculated to mislead the jury and to induce them to consider things that properly constitute but one element.

In Tex. & N. O. Ry. Co. v. McCraw, 43 Tex. Civ. App. 247, 95 S. W. 82, the charge was as follows: "If you determine that plaintiff was injured substantially as was alleged by him, and if you find for the plaintiff, then you may consider the nature, extent, and duration of such injury, and whether or not plaintiff has...