Wilson v. Freeman

• Decision Date: 17 May 1916
• Docket Number: (No. 2455.)
• Citation: 185 S.W. 993
• Parties: WILSON v. FREEMAN.
• Court: Texas Supreme Court

Page 993

185 S.W. 993

WILSON v. FREEMAN.

(No. 2455.)

Supreme Court of Texas.

May 17, 1916.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by C. W. Wilson against T. J. Freeman and another. The suit was dismissed as to the unnamed defendant, judgment for plaintiff against the named defendant was reversed by the Court of Civil Appeals (149 S. W. 413), and to review such judgment plaintiff brings error. Judgment of the Court of Civil Appeals reversed and remanded.

J. D. Childs and Jas. W. Brown, both of San Antonio, and W. C. Campbell, of Palestine, for plaintiff in error. F. C. Davis, of San Antonio, and Ramsey, Black & Ramsey, of Austin, for defendant in error.

YANTIS, J.

This suit was instituted by C. W. Wilson, plaintiff in error, in the district court of Bexar county, against T. J. Freeman, receiver, and the International & Great Northern Railroad Company, to recover damages for personal injuries received by him while he was rendering services to said receiver and said railroad as an employé. The suit was dismissed as to the International & Great Northern Railroad Company.

The plaintiff in error, Wilson, alleged that while he was removing cross-ties from the roadbed of said railroad with a pick which had been furnished by the defendant in error a sliver of steel, or metallic substance, slivered off from said pick and entered his left eye, causing total blindness therein. Several grounds of negligence were alleged by the plaintiff in error, but only one of the grounds pleaded was presented to the jury, and that was "the defective and insufficient condition" of the pick, by reason of which condition "a piece of steel slivered off from said pick and struck plaintiff in the left eye." It was alleged by the plaintiff in error that by reason of such negligence he had lost the sight of his left eye, and that "the right eye has also become injured and affected, that it is only a question of time when he will also lose the sight of his right eye, and he will become totally blind." A verdict was rendered in favor of the plaintiff in error for $20,386.05. An appeal was taken by the receiver, Freeman, to the Court of Civil Appeals for the Fourth District. That court held that no error was committed in the trial of the case in the district court, but held that the verdict was excessive, and that it could not suggest the amount of the excess by reason of the circumstances of the case; that the evidence did not warrant a recovery for total blindness, and it was only upon this theory that the jury could have found so large a recovery, which we construe to be a clear holding that the evidence was insufficient to support so large a sum as was found by the jury. 149 S. W. 413.

The plaintiff in error, C. W. Wilson, presented to this court his petition for writ of error, which was granted; this court entertaining the view that article 1631, Vernon's Sayles' Statutes, is mandatory in its requirement that, when the verdict is found excessive by the Court of Civil Appeals, it is the duty of that court to indicate the amount of the excess, and to allow a remittitur thereof, if filed within the time fixed by it. Said article is as follows:

"In all civil cases now pending, or that may hereafter be appealed to any Court of Civil Appeals of this state, and such court shall be of the opinion that the verdict and judgment of the trial court is excessive, and for that reason only, said cause should be reversed, then it shall be the duty of such Court of Civil Appeals to indicate to the party in whose favor such judgment was rendered, or his attorneys of record, the amount of the excess of such verdict and judgment; and said court shall, at the same time, indicate to such party, or his attorney, within what time he may file a remittitur of such excess; and, if such remittitu...