Texas & New Orleans Railroad v. Carr , 91 Tex. 332 ( 1897 )

DENMAN, Associate Justice.

On April 20, 1896, H. A. Carr recovered judgment against the Texas & New Orleans Railroad Company for §13,742.86, for personal injuries received April 24, 1894, which judgment was affirmed by the Court of Civil Appeals. The petition, after stating the circumstances, alleged: “That by reason of the injuries aforesaid, plaintiff has been actually damaged in the sum of Ten Thousand One Hundred and Seventy Dollars (§10,170) and that, by reason of the crushing, mangling and bruising of plaintiff’s leg as aforesaid, plaintiff has suffered great physical pain and mental anguish and agony, to his damage in the further sum of Five Thousand Dollars.”

The trial court instructed the jury that if they should find for plaintiff they might assess his damages at a sum “not to exceed the amount sued for, to-wit: fifteen thousand one hundred and seventy dollars, with six per cent interest per annum from date of injury to the present time.”

The action of the Court of Civil Appeals in overruling the assignment of error complaining of this charge is assigned as error here. We think the charge was on its face erroneous in that it permitted the jury to allow interest for the period of one year eleven months and twenty-six days intervening between the dates of the injury and judgment (Watkins v. Junker, 90 Texas, 584). This erroneous statement of the law may have resulted in the addition of such interest, and to that extent but no further may have prejudiced defendant. The judgment will therefore be reversed and the cause remanded unless plaintiff below within ten . days from this date files a remittitur reducing the original judgment to §12,277.75,—that being the sum which put at interest at the rate of six per cent per annum for one year eleven months and twenty-six days will amount to the original judgment, §13,742.86; but if such remittitur be filed the judgment will be reversed and here rendered for plaintiff below for §12,277.75, with interest thereon at six per cent per annum from the date of the judgment below, and all costs of the trial court,—plaintiff in error to recover all costs of appeal and Writ of error.