Texas Electric Ry. v. Worthy

• Decision Date: 10 March 1923
• Docket Number: (No. 8770.)
• Citation: 250 S.W. 710
• Parties: TEXAS ELECTRIC RY. v. WORTHY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 710

250 S.W. 710

TEXAS ELECTRIC RY. v. WORTHY.^*

(No. 8770.)

Court of Civil Appeals of Texas. Dallas.

March 10, 1923.

Rehearing Denied April 14, 1923.

Appeal from District Court, Collin County; F. E. Wilcox, Judge.

Action by W. H. Worthy against the Texas Electric Railway. Judgment for plaintiff, and defendant appeals. Affirmed.

Templeton, Beall, Williams & Worsham, of Dallas, and Smith & Abernathy, of McKinney, for appellant.

Truett & Neathery, of McKinney, and C. F. Greenwood, of Dallas, for appellee.

JONES, C. J.

Defendant in error, W. H. Worthy, in a suit in the district court of Collin county was awarded judgment in the sum of $11,500 as damages for personal injuries sustained while he was a passenger on an interurban car belonging to plaintiff in error, the Texas Electric Railway. The injuries were occasioned by a head-on collision between the interurban car on which the defendant in error was riding and another interurban car owned by plaintiff in error and moving in the opposite direction. Said collision occurred in Collin county on the 9th day of January, 1920. There are no issues joined in this appeal in reference to defendant in error's injuries being caused by the negligence of plaintiff in error.

Defendant in error at the time of the injuries was engaged in the automobile business in McKinney, Tex., and had been engaged in this business for some time. He occupied a business building in said city in which he kept automobiles on hand, and he employed a salesman and bookkeeper; and, in addition to said business, but in connection therewith, he operated a repair shop, employing two mechanics during the year 1919 and at times had additional men employed. He was very active in his business and his estimate was that his individual service to the business was worth $10,000 per annum.

The case was tried on May 27, 1921, approximately 16 months after the accident causing the injuries. During this time defendant in error had not been able to take active charge of his business, though after about 3 months from the date of his injuries he would go down to his place of business in an automobile and stay there a part of the time and attend to some matters with reference to said business. His estimate of the time he had been able to devote to his business since the accident was about 10 per cent., and he estimated that the value of this service did not exceed $500.

The collision was a very violent one; the car in which defendant in error was riding being driven into the other car for a distance of several feet. This car was described as being badly "torn up." At the time of the collision defendant in error was riding in the front end of this car, and he received very serious and painful injuries, and some of them are shown from the evidence to be permanent in their nature.

A reversal of this case is predicated upon errors assigned on the following particulars: (1) The refusal of the court to give a requested instruction, excluding from consideration by the jury in fixing damages the profits made by defendant in error in his business; (2) error in the admission of evidence in reference to an injury not specifically pleaded; (3) error in the court's charge on the measure of damages, in that, there being evidence that defendant in error had suffered injuries from an accident in an interurban car in 1912, and also had suffered injuries from an accident in a collision between an automobile and a railroad car in 1913, the court should have specifically charged the jury that no recovery should be had for injuries received on either of these occasions, and his failure to do so was prejudicial to plaintiff in error's rights; (4) refusal of the court to give a requested instruction specifically charging the jury not to consider as an element of damages the injuries received on said two occasions; (5) that the verdict is excessive.

The third paragraph of the court's charge submits the measure of damages and is as follows:

"If under the above and foregoing instructions you find for the plaintiff, you will allow him such sum as you believe from the evidence will as a present cash payment reasonably and fairly compensate him for the mental and physical pain he has endured, if any, on account of his injuries, if any, also for the mental and physical pain it is reasonably probable he will suffer in the future, if any, on account of his injuries, if any, also the reasonable value of time lost to him from such injuries down to the trial, if any, also for his diminished capacity to labor and earn money in the future, if any, on account of his injuries, if any, also the reasonable value of past necessary nursing on account of his injuries, also the reasonable value of the clothes worn by the plaintiff at the time he was injured, the value of which for wearing purposes was destroyed; but, in assessing damages, you will consider only the injuries alleged and proved to have been suffered by plaintiff as a direct and proximate result of the collision in question in 1920, and you will not allow damages for injuries, if any, which plaintiff suffered at any other time or place."

The refusal of the court to give the following requested instruction forms the basis for defendant in error's first assignment of error:

"You are instructed that in assessing damages, if any, in this cause you will not take into consideration as an element of damages any profits plaintiff might have made from the sale of automobiles in his business, or by him personally."

The basis for this requested instruction rests on the following facts: Defendant in error, during the years 1917, 1918 and 1919, was the agent for various automobile cars. His territory on some of the cars included the counties of Grayson, Fannin, Cooke, and Collin. During these years defendant in error was engaged in traveling over portions of this territory an average of four days out of six in a week, demonstrating and driving the different cars and presenting them to the trade. He did salesman work, mechanical work in the shops, assisted in unloading automobiles and in demonstrating for sales, and, in short, all the work pertaining to the automobile business. He testified that his individual services in the sale of cars were worth $10,000; that his earnings in the sale of cars came from the commissions allowed on the sale of each car. For the year 1918, he testified, "my individual earnings in the sale of automobiles in 1918 amounted to $15,500. That was what I earned personally."

John Ball testified that he was associated with defendant in error in business and knew of his work in the business and of his sales of cars, and that his estimate of the value of defendant in error's services was $700 or $800 per month. On cross-examination he stated that he was worth $700 or $800 to the business a month; that his earnings would be something like that in the sale of cars. In his testimony he used this expression:

"At that time I mean his profits in his business would be $700 or $800 a month — that is, from the sale of cars in his business. I do not mean that he had a salary of $700 or $800; I do not think he was working for a salary."

There was no testimony as to the entire earnings of the business, or as to how much money was invested in the business. When this testimony is fairly construed, it had reference to the value of the net commissions secured by the individual efforts of defendant in error on the sale of cars and the value of the other individual work of defendant in error.

It is not urged by plaintiff in error that this was not admissible evidence, but its contention is that, though admissible, it could not be considered by the jury as an element of damages. It is true that these sums of money, shown to have been earned by defendant in error, could not be taken by the jury as items of established damages in fixing the amount the jury would allow him for time lost. The requested charge comprehends much more than such restriction. Its effect would have been to direct the jury that such testimony could not be used in considering any item of damages that d...