Texas & N. O. R. Co. v. Barham

• Decision Date: 05 June 1947
• Docket Number: No. 2716.,2716.
• Citation: 204 S.W.2d 205
• Parties: TEXAS & N. O. R. CO. v. BARHAM.
• Court: Texas Court of Appeals

204 S.W.2d 205

TEXAS & N. O. R. CO. v. BARHAM.

No. 2716.

Court of Civil Appeals of Texas. Waco.

June 5, 1947.

Rehearing Denied September 4, 1947.

Appeal from District Court, Robertson County; W. S. Barron, Judge.

Suit by Dwight C. Barham against the Texas & New Orleans Railroad Company to recover for personal injuries allegedly sustained by the plaintiff while an employee of the defendant. From a judgment for the plaintiff, the defendant appeals.

Reversed and cause remanded.

F. A. Woods, and Ben L. Parten, both of Franklin, and Baker, Botts, Andrews & Walne, of Houston, for appellant.

Grace & Palmos, of Hearne, and Clint Barham and McNees & McNees, all of Dallas, for appellee.

LESTER, Chief Justice.

This suit was instituted by appellee, Dwight C. Barham, against the Texas & New Orleans Railroad Company, appellant for damages as the result of personal injuries alleged to have been sustained by him while an employee of the Railroad Company. For convenience the parties will be designated as in the lower court.

The case was submitted to the jury on special issues which resulted in a judgment for the plaintiff in the sum of $12,000.

The issue relating to the amount of damages sustained by the plaintiff was Issue No. 27 and was submitted in the following form, to-wit:

"State what sum of money, if paid now, will reasonably compensate plaintiff, Dwight C. Barham, for the damages, including doctor, medical and hospital bills, which he sustained on account of his injuries, if any, at the time and on the occasion in question."

In connection therewith the court gave the following charge:

"In arriving at your findings of such damages, if any, you may take into consideration the nature and extent of the injuries he has sustained, if any, as shown by the evidence, and any pain or suffering or mental anguish, if any, he has undergone in the past on account of said injuries, if any. And if you believe from the evidence that such injuries, if any, are of a permanent nature, you may also take into consideration any loss of time or incapacity to labor, from date of injury, if any, and diminished earning capacity in the future, and any pain or suffering, if any, you may believe from the evidence he may sustain or suffer in the future, if any."

The defendant objected to the submission of said issue "because such issue authorizes the jury to include as damages, `doctor, medical and hospital bills,' without regard to the necessity or reasonableness thereof. Such issue therefore places an undue burden upon this defendant and submits an improper measure of damages not recoverable in this case."

The court overruled said exception, and such action on the part of the court is assigned as error by the defendant.

It is the well settled law of this state that one who has been injured by the wrongful act of another is entitled to recover reasonable and necessary expenses caused thereby. 13 Tex.Jur., p. 189, sec. 94; 25 C.J.S., Damages, § 45, p. 524; Wheeler v. Tyler S. E. Ry. Co., 91 Tex. 356, 43 S.W. 876, 877; Missouri, K. & T. R. Co. v. Warren, 90 Tex. 566, 40 S.W. 6; Gulf, C. & S. F. R. Co. v. Harriett, 80 Tex. 73, 15 S.W. 556. Such expenses must not only be reasonable in amount, but it must be reasonably necessary that they were incurred as a result of the wrongful act of the opposing party. We quote the testimony concerning such items of expense to show that the reasonable amount of the doctor, medical and hospital bills and the necessity therefor were not established as a matter of law, but they were, in many respects, left in a state of uncertainty.

Plaintiff testified that he was injured on or about February 17, 1941; that he continued to work for several months but did not see a doctor concerning his injury until January 10th or 12th, 1942, after he arrived in Honolulu; that since he arrived in Honolulu in 1942 he had been to several doctors for treatment, two in Honolulu, one in San Antonio, two in Dallas and several in the army, but there was no testimony as to the nature of the treatment received by him from the doctors, except when he was in Honolulu the doctor gave him sun ray treatments for his back, nor was there any testimony of the amount of the charges made, nor the reasonableness of such charges, except that plaintiff was asked: "Have you had any medical expenses as a result of this injury?" and he answered: "Yes sir." Then he was asked: "Have you obligated yourself to pay any more money for medical fees?" and he answered: "About $400.00." Dr. Ruth Jackson testified that she examined the plaintiff on May 23, 1946, and again on October 4th, and that she had some X-ray pictures made of plaintiff's back and spine, and from a physical examination of the plaintiff she was of the opinion that he had sustained a very serious injury to his back and spine at the fourth and fifth lumbar vertebrae and that the X-ray pictures she had made also revealed such an injury; that her fees up to the date of trial, including the X-ray pictures, were approximately $30 or $40. She testified, in answer to a question propounded by plaintiff's attorney:

"Q. Doctor, is there any way, in your opinion, by which he might be relieved of the pain and suffering which he now has and he will continue to have unless some immediate action is taken? A. I think the only thing to do, the only other thing, the convenient thing of postural exercise, to increase the space of the two vertebras. The only other thing that could be done is operate and the operation it would mean going into the point of injury, of the two injured discs, and very often find fracture and remove the injured disc, and by this it has become necessary that the scar tissue take it out, then replace it to a space function and then graft the piece back of his spine to return it in that area or a joint from the outside."

She further testified that all operations of this kind were not entirely satisfactory. She also said that the average fee in Dallas for the operation would be about $500; that he would be required to go to the hospital for at least two or three weeks; that the fees of the hospital changed every month but she gave an estimate of what she thought the hospital fees would amount to and detailed other expenses in connection with said operation, many of said items being based upon certain contingencies, but she failed to testify that the amount of such items of expense detailed by her was reasonable.

The defendant placed upon the stand four doctors, whose qualifications were unchallenged. None of them had made a physical examination of the plaintiff but they had examined the X-ray pictures that Dr. Jackson had testified about, and each one testified that the pictures disclosed no serious back injury such as Dr. Jackson had described.

The measure of plaintiff's recovery in respect to the expenses he sustained is not what he obligated himself to pay, but he is limited to the reasonable value of such expenses that it was reasonably necessary for him to sustain as a result of his injuries. The burden is upon the plaintiff to make such allegation and proof, and the defendant was entitled to a charge limiting the consideration of the jury to the reasonable amount of such expenses that were reasonably necessary for the plaintiff to incur. The failure of the court to frame its charge so as to conform to the foregoing rule requires a reversal of the case, since a proper and timely objection made thereto was overruled.

Plaintiff contends that there was no error in the issue as submitted: "State what sum of money, if paid now, will reasonably compensate plaintiff, Dwight C. Barham, for the damages, including doctor, medical and hospital bills, which he sustained on account of his injuries, if any, at the time and on the occasion in question." Plaintiff says that the use of the word "reasonably" as placed in the issue just preceding the word "compensate" modified and described the words "doctor, medical and hospital bills", and thereby restricted the consideration of the jury to the reasonableness of the amount and the necessity of such expenses sustained by the plaintiff. With this contention we are unable to agree. In our opinion, those items of expense were submitted to the jury without any limitation whatsoever as to their consideration as to the reasonableness in the amount or the necessity therefor, and permitted the jury, if it saw fit, to bring in a verdict for the full amount of such expenses testified to without a proper guide or limitation placed thereon by the court.

Plaintiff says that if the issue is subject to the exception referred to, that same should not result in a reversal of this case because the defendant had the additional burden of presenting to the court a requested issue in writing that was substantially correct. We cannot agree with plaintiff on this proposition. The rule is that if the court fails to submit an issue or define some legal term or give an explanatory charge desired by a party, then it is the duty of such party to object to such action on the part of the court in failing to do so, and then, in addition to his objection, prepare and submit in writing one that is substantially correct, requesting the court to give same, but there are some well established exceptions to the foregoing rule. One is that a party is not required to submit a controlling issue of recovery or defense relied upon by the opposing party. A proper objection to such failure of the court to so submit is sufficient. Another one is that if the court submits such issue or attempts to give a definition or an explanatory charge, even though unsatisfactory and incorrect, this brings the parties within the provisions of Rule 274 instead of Rule 279, and the only duty required of a party is to except to the same in language sufficiently clear to call the court's attention to such error, and if overruled, the complaining party is entitled to have the alleged error...