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

• Decision Date: 14 March 1898
• Citation: 44 S.W. 1064
• Parties: TEXAS & N. O. R. CO. v. SYFAN.
• Court: Texas Supreme Court

44 S.W. 1064

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

Supreme Court of Texas.

March 14, 1898.

Error to court of civil appeals of First supreme judicial district.

Action by Charles E. Syfan against the Texas & New Orleans Railroad Company to recover for personal injuries. Judgment for plaintiff, and defendant appealed to the court of civil appeals, which affirmed the judgment on filing of a remittitur (43 S. W. 551), and defendant brings error to the supreme court. Affirmed.

Baker, Botts, Baker & Lovett, for plaintiff in error. Schwander & Buffington and W. C. Oliver, for defendant in error.

BROWN, J.

The defendant in error was riding in a vehicle drawn by one horse along a private way in the city of Houston, near to which the plaintiff in error had constructed and was operating and using a switch track to and from a compress nearby. An engine and tender belonging to the railroad company, and being operated by its employés at the time, was being moved along the switch track when it came up behind Syfan, and, when opposite to him, the engineer or fireman on the engine opened the steamcock of the locomotive, so as to allow the steam to escape, and to fall upon and around the horse of Syfan, which caused the horse to take fright and run away, throwing the defendant in error from the vehicle, thereby inflicting upon him serious bodily injuries. The person who turned on the steam saw Syfan, and knew that the steam was liable to alarm the horse and cause it to run, and thereby might cause injury to the occupant of the vehicle. Syfan sued the railroad company for damages, and upon trial before a jury a verdict was rendered for $5,561. The court of civil appeals held that the verdict of the jury was excessive in the sum of $2,061, and suggested that, if the appellee would remit that sum within the time stated, the judgment would be affirmed; otherwise, it would be reversed and remanded. The remittitur was entered, and the judgment affirmed for the sum of $3,500.

This writ of error was granted because we were inclined to the opinion that the court of civil appeals had no power in causes like this to suggest a remittitur of the excess of a verdict as a condition of affirmance, and, upon such remittitur being filed, to affirm the judgment, instead of reversing and remanding for the error of excessive amount. That is the only question that we think it necessary to discuss in this case. We concur in the opinion of the court of civil appeals upon the other questions presented in the application, except that we do not approve of the intimation that the allegations of the amended petition set up a new cause of action, but that court correctly held that the question of limitation raised under that pleading was not before the court.

The rule of practice established by the former decisions of our supreme court in actions for damages where the measure of recovery is not fixed by law is, when a verdict has been found to be excessive in amount, the court cannot permit the plaintiff to cure the error of excess by a remittitur, and thereby avoid a new trial, but the judgment must be set aside, and a new trial awarded. Thomas v. Womack, 13 Tex. 584; Heidenheimer v. Schlett, 63 Tex. 394; Railway Co. v. Wilkes, 68 Tex. 617, 5 S. W. 491; Railway Co. v. Coon, 69 Tex. 730, 7 S. W. 492; Kaufman v. Armstrong, 74 Tex. 65, 11 S. W. 1048; Nunnally v. Taliaferro, 82 Tex. 286, 18 S. W. 149; Hoskins v. Huling, 4 Tex. Law Rev. 183. In the case of Thomas v. Womack, above cited, the court, after reviewing a number of cases in which the plaintiff had been permitted to enter a remittitur of the excess of the verdict, said: "But the present is a very different case. Here the law furnishes no other criterion by which to measure the damages which may be given than the discretion and sense of right and justice of the jury, and reserves to the court no other control over the verdict than to grant a new trial where the damages are so excessive as to bear the evident impress of prejudice, passion, gross ignorance, or corruption. In cases where there is no certain measure of damages (it has been said), the court will not substitute its own sense of what would be the proper amount of the verdict, and will not set aside a verdict for excessive damages unless there is reason to believe that the jury were actuated by passion or by some undue influence perverting the judgment. No more will the court substitute its sense of what would be the proper amount of the verdict where it is so excessive as to warrant the belief that the jury have been misled either by passion, prejudice, or ignorance, but will set the verdict aside altogether, and grant a new trial; for to permit the verdict to be reduced to an amount which the court might think reasonable in such a case would be to substitute the opinion of the judge for the verdict of the jury, and in effect to deny the aggrieved party the right to a trial by an impartial jury." The doctrine here declared by our supreme court is supported by some of the American courts, of which we cite the following: Railway Co. v. Harper, 70 Ga. 119; Rodney v. Railroad Co., 127 Mo. 676, 28 S. W. 887, and 30 S. W. 150; Vinal v. Core, 18 W. Va. 1. The weight of authority sustains a doctrine contrary to that heretofore asserted by our courts, and accords to the court trying the case the discretion to suggest a remittitur of a stated amount as a condition upon which a motion for new trial will be overruled or a judgment affirmed, when there is no other error, and the court finds that the verdict of the jury is for an excessive amount, and that, upon the plaintiff's accepting the terms and entering the remittitur, the court may overrule the motion for rehearing or affirm the judgment, the error being cured by the remittitur. Duffy v. City of Dubuque, 63 Iowa, 171, 18 N. W. 900; Hamilton v. Railway Co., 17 Mont. 334, 42 Pac. 860, and 43 Pac. 713; Potter v. Railway Co., 22 Wis. 615; Baker v. City of Madison, 62 Wis. 137, 22 N. W. 141, 583; Pratt v. Press Co., 35 Minn. 251, 28 N. W. 708; Broquet v. Tripp, 36 Kan. 700, 14 Pac. 227; Holmes v. Jones, 121 N. Y. 461, 24 N. E. 701; Branch v. Bass, 5 Sneed, 366; Mill Co. v. Gillen, 100 Ill. 52; Belt v. Lawes, 12 Q. B. Div. 356. In none of the cases upon either side of this question have we found reference to any statute upon the subject, nor has the decision in any case been placed distinctly upon any constitutional provision except in one case hereinafter cited. Those courts which deny the power put their decisions upon the ground that the law does not authorize the court to ascertain the amount for which judgment shall be rendered in such cases. The basis of all such decisions is best stated in Railway Co. v. Harper, 70 Ga., on page 129, in this language: "As suggested in the case from 3 Sandford's Reports [Diblin v. Murphy, 3 Sandf. 19], the course pursued here might be desirable, because it would relieve the parties from the expense and delay of a new trial. The answer to such a suggestion is...