Texas Cities Gas Co. v. Ellis

• Decision Date: 27 April 1933
• Docket Number: No. 1351.,1351.
• Citation: 63 S.W.2d 717
• Parties: TEXAS CITIES GAS CO. v. ELLIS.
• Court: Texas Court of Appeals

63 S.W.2d 717

TEXAS CITIES GAS CO. v. ELLIS.

No. 1351.

Court of Civil Appeals of Texas. Waco.

April 27, 1933.

Rehearing Denied June 8, 1933.

On Appellee's Motion for Rehearing September 21, 1933.

Rehearing Denied October 19, 1933.

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Suit by Isadore Ellis against the Texas Cities Gas Company. From a judgment for plaintiff, defendant appeals.

Reformed, and as reformed, affirmed.

Thompson, Knight, Baker & Harris, of Dallas, and Jos. W. Hale, of Waco, for appellant.

W. L. Eason and Tirey & Tirey, all of Waco, for appellee.

GALLAGHER, Chief Justice.

This suit was instituted by appellee, Isadore Ellis, against appellant, Texas Cities Gas Company, to recover damages for injuries to his person and property sustained as a result of an explosion which he alleged was caused by gas. He further alleged that said gas had escaped from appellant's main and accumulated under his storehouse, and that appellant was negligent in permitting it to so escape.

The case was submitted to a jury on special issues. The jury found all the issues of negligence submitted against appellant, and all the issues of contributory negligence submitted in favor of appellee. The jury further found that appellee, as the proximate result of appellant's negligence, had sustained personal injuries, and fixed compensation therefor at the sum of $15,000. The jury further found that appellee's property had been injured and damaged. The court rendered judgment on the verdict in favor of appellee against appellant for the sum of $15,645.

Opinion.

Appellant presents various assignments of error, in which it complains of the manner in which the issue of compensation for injuries to appellee's person was submitted to the jury for determination. The issue submitted was as follows: "Special Issue No. 11: What amount of money, if any, if paid now in cash, do you find from a preponderance of the evidence, if any, would reasonably compensate the plaintiff for his injuries, if any? Answer in dollars and cents, if any."

The court, to guide the jury in determining its answer to said issue, submitted in immediate connection therewith the following explanatory instruction: "In connection with special issue No. 11 you may take into consideration only the following, to-wit: Any physical and mental pain and suffering, if any, that you may believe from a preponderance of the evidence that the plaintiff, Isadore Ellis, may have undergone in the past or may undergo in the future, if any, as a direct and proximate result of the negligence, if any, of the defendant; the reasonable value of the loss of time, if any, you may believe from a preponderance of the evidence he has sustained to this date as a direct and proximate result of the negligence, if any, of the defendant; and his decreased ability, if any, to earn money in the future you may believe from a preponderance of the evidence he has sustained (if he has sustained any), as a direct and proximate result of the negligence, if any, of the defendant; also the amount of money, if any, that you believe from a preponderance of the evidence that the plaintiff has reasonably and necessarily expended or become liable to expend for doctor bills and hospital services as a direct and proximate result of the negligence, if any, of the defendant."

Appellant contends that said issue was multifarious and that each separate element of damage which the jury was authorized by the terms of the explanatory charge to consider in answering the same should have been submitted as a separate and distinct issue and a separate finding invoked in response to each such issue. The Commission of Appeals, in International-G. N. R. Co. v. King, 41 S. W.(2d) 234 et seq., considered the contention urged by appellant and reviewed the authorities bearing thereon, and there held that a separate submission of each element of damage in a suit to recover compensation for personal injuries was calculated to confuse and mislead the jury and to cause findings amounting in the aggregate to a different sum from that which would have been found if only a single finding of damages had been made. The submission in personal injury cases of a single issue invoking a finding of compensatory damages in one aggregate sum is customary and has been frequently approved by our courts. Berwald v. Turner (Tex. Civ. App.) 52 S.W.(2d) 112, 114, par. 3; Texas & N. O. R. Co. v. Kveton (Tex. Civ. App.) 48 S.W.(2d) 523, 526, par. 4; Breckenridge Ice & Cold Storage Co. v. Hutchens (Tex. Civ. App.) 260 S. W. 684, 686, pars. 4 and 5, and authorities there cited.

Appellant contends that the jury was authorized, by the terms of the explanatory charge above quoted, when applied to the evidence, to allow as damages for lost time and impaired capacity to labor and earn money, a greater amount than claimed by appellee in his petition. Appellee alleged, in substance, that prior to his injury he was an able-bodied man, in good health, and had never been sick a day in his life; that he was capable of doing hard work; that he owned and operated a store and received the profits thereof; that he was capable of earning and did earn $200 per month. He further alleged that, since his injuries and as a result thereof, he had lost two months' time; that from the expiration of said period until the time of trial he had suffered a 50 per cent. impairment of his capacity to work, and that he would continue to so suffer for the remainder of his life; that he was then in bad health and could not work as he did before; was unable to conduct his business with the same efficiency as before, and that his incapacity was permanent. He further alleged that, by reason of his loss of time as aforesaid and his incapacity to labor prior to the trial and thereafter for the remainder of his life, he had been damaged in the sum of $15,000. He nowhere alleged that he was totally incapacitated from laboring and earning money, nor that his impairment in that respect was greater than 50 per cent. as aforesaid. The accident occurred December 15, 1931, and the trial was begun May 19, 1932. Appellee's testimony was sufficient to sustain a finding that he had not been able to work from the time of his injuries until the trial. He also introduced testimony tending to show that his capacity to labor had been totally destroyed, or at least impaired to a substantially greater extent than 50 per cent., as alleged in his petition. The court, in the charge above quoted, told the jury, in substance, that they might, in fixing the amount of appellee's damages, take into consideration the reasonable value of the time lost to date of trial and his decreased ability to earn money in the future. The jury fixed appellee's entire compensation for physical and mental pain and suffering, loss of time, impaired capacity to earn money in the future, and for expenditures for hospital charges, drugs, and doctors' bills, at the sum of $15,000. The authorities are uniform in requiring that every element of a recovery be supported by pleading, and within the limits alleged. When several elements of damage are pleaded and are recited as the basis for a finding by the jury of damages in the aggregate, and the evidence tending to establish one or more of such elements would authorize the recovery of a greater amount therefor than is claimed therefor in the pleadings, it is affirmative error to instruct the jury that they may consider or allow the amount shown by the evidence, without limiting such amount to the allegations of the pleadings. City of Dallas v. Jones, 93 Tex. 38, 47, 49 S. W. 577, 53 S. W. 377; Fort Worth & D. C. R. Co. v. Measles, 81 Tex. 474, 477, 478, 17 S. W. 124; Missouri, K. & T. Ry. Co. of Texas v. Beasley, 106 Tex. 160, 178, 179, 155 S. W. 183, 160 S. W. 471; Southern Pacific Co. v. Martin, 98 Tex. 322, 83 S. W. 675, 677; Missouri, K. & T. Ry. Co. v. Pawkett, 28 Tex. Civ. App. 583, 68 S. W. 323, 326, par. 5 (writ refused); Inter-National & G. N. R. Co. v. Shaughnessy (Tex. Civ. App.) 81 S. W. 1026, 1027; Rapid Transit Ry. Co. v. Williams (Tex. Civ. App.) 136 S. W. 267, par. 2; Dallas Consolidated Electric St. Ry. Co. v. English, 42 Tex. Civ. App. 393, 93 S. W. 1096, 1097, 1098; Martin-Brown Co. v. Pool (Tex. Civ. App.) 40 S. W. 820, 821 et seq.; Gulf, C. & S. F. Ry. Co. v. Simonton, 2 Tex. Civ. App. 558, 22 S. W. 285, 286. The court in this case having authorized the jury to consider, in fixing the amount of appellee's damages, the several elements recited in the explanatory charge above quoted, and the jury having fixed such damages at an aggregate sum, we do not know what amount was included therein for time lost prior to the trial nor for decreased ability to labor and earn money in the future. We are unable to suggest a remittitur which would cure the error.

Appellant presents numerous other assignments of error, and we have carefully considered all the same. The issues of law presented thereby will not necessarily arise in the same way, if at all, upon another trial. Since the case is to be reversed, we do not deem further discussion of the testimony proper or expedient.

For the error above discussed, the judgment of the trial court is reversed, and the cause remanded.

On Appellee's Motion for Rehearing.

The judgment of the trial court was, at a former day of this term, reversed and the cause remanded because the charge of the court authorized, under the evidence admitted, recovery by appellee for a greater degree of permanent incapacity than he had alleged in his petition. The jury, as recited in our original opinion, assessed appellee's damages for the injuries sustained by him to his person at the aggregate sum of $15,000. Appellee has filed in this court a remittitur of one-half of said recovery. Manifestly, any possible injury to appellant from such error in the charge has been eliminated by such remittitur. We will therefore further...