Flanigan v. Carswell

329 S.W.2d 902, 1959 Tex. App. LEXIS 2242

• Court: Court of Appeals of Texas
• Decided: November 25, 1959
• Docket: 10570
• Status: Published

Opinions

PER CURIAM.

The history and subject matter of this suit is shown in our opinion found in 315 S.W.2d 295 and in the opinion of the Supreme Court found in 324 S.W.2d 835, 841. The Supreme Court in its opinion remanded the cause to this Court for the purpose of having us redetermine the validity of the action of the Trial Court in requiring appellees to file remittiturs as conditions to denying motion for a new trial. In . this regard the Supreme Court has given us the following instruction:

“If, in the light of all the facts and circumstances, the trial court’s order of remittitur was manifestly unjust, the Court of Civil Appeals should restore the remittitur or such part thereof as the Court of Civil Appeals deems necessary to prevent the order from being manifestly unjust and render such judgment as the trial court should have rendered.”

In accordance with these instructions we have reexamined the entire record and have concluded, in the light of all the facts and circumstances, the action of the trial court in requiring remittiturs to be filed by each appellee is manifestly unjust.

We have previously set out in our reported opinion a portion of the evidence upon which the jury based its damage awards. We refer to that opinion for such evidence and incorporate it herein by reference.

To the statement there made we add only that appellants offered no rebutting medical testimony.

We also direct attention to the order of remittitur. It reduced each jury award by exactly 60%. There were two individuals suing, each with different ages and stations in life and each sustaining dissimilar injuries. That each award was excessive in an identical per cent appears most unlikely and unreasonable. Rather, we believe, it is an indication of arbitrary action on the part of the Trial Court.

Having concluded that the remittiturs should not have been required we proceed, as directed by the Supreme Court, to render the judgment which the Trial Court should have rendered.

It is ordered and adjudged that appel-lee Carswell recover the sum of $30,000 and appellee Wilson the sum of $5,000 of and from appellants together with 6% interest thereon from October 2, 1957, the date of the original judgment entered by the Trial Court, and costs of suit.

As reformed the judgment of the Trial Court is affirmed. /

Reformed and affirmed.