Dallas Railway & Terminal Co. v. Farnsworth

231 S.W.2d 518, 1950 Tex. App. LEXIS 2184

• Court: Court of Appeals of Texas
• Decided: May 26, 1950
• Docket: 14009
• Status: Published

Opinions

YOUNG, Justice.

Above cause has been remanded to this Court for further examination of points of error with reference to excessiveness of verdict, the Supreme Court concluding that our overruling of these assignments may have resulted from a misinterpretation of Rule 440, Texas Civil Procedure. See Tex.Sup., 227 S.W.2d 1017, Supreme Court, for text of the Rule; also Tex.Civ.App., 221 S.W.2d 981 for relevant findings and conclusions by this Court. In our cited opinion, comment was made on largeness of jury verdict which, upon further review of the record, we are now constrained to regard as excessive. Several considerations have entered into this suggestion of remittitur, — aspects of the case which, if viewed singly, would not have been deemed controlling. The testimony of Dr. Buehler (family physician) relative to appellee’s condition following the fall to pavement has heretofore been detailed, to which we may add that in his opinion her emotional instability may have been the result óf a concussion. In contrast, his diagnosis on appellee’s discharge from the hospital, February 1947, was a possible muscular inflammation due to trauma. At the time of trial Dr. Buehler was prescribing nothing, last prescriptions being sedatives to relieve headache and calm nerves. The claimed injuries must be characterized as subjective, other highly experienced specialists (Drs. Knight, Shelton and Grollman), upon various examinations, finding no organic basis for her complaints ; and bearing upon the damage issue of impaired earning power, was the fact of a substantial increase in salary following injury. Above matters, given due weight in connection with an estimate and appraisal of the damages shown by Mrs. Farnsworth, present, we think, a case for reduction of verdict by at least $4,000; in other words, the sum of $8,518 is reasonable compensation for the injury actually suffered. Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993, Ann.Cas.1918D, 1203.

If appellee desires to file a remittitur of $4,000 on or before June 9, 1950, judgment of the trial court will be so reformed and affirmed, one-third of the costs of this Court being likewise taxed against appel-lee. Otherwise the judgment will be reversed and cause remanded for another trial.