M., K. and T. Ry. Co. v. Warren , 90 Tex. 566 ( 1897 )

This is a suit for personal injuries and was brought by defendant in error against the plaintiff in error.

The petition for the writ of error presented substantially but two grounds for the writ; one upon the charge of the court, and the other as to the sufficiency of the evidence to warrant an instruction authorizing the jury, in case they found for the plaintiff, to give him damages for expenses incurred for the treatment of his injuries. When we passed upon the application we thought, and we still think, that the question presented in the first assignment in this court was correctly decided by the Court of Civil Appeals, but we were of the opinion that the evidence was not sufficient to warrant a recovery for the charges contracted by the plaintiff by reason of the treatment of the physician. The only testimony upon that point was that of the plaintiff, which showed merely that the physician charged him $150 for his services. We thought the reasonable value of such services should have been proved. But since the writ of error was granted, the plaintiff, now the defendant in error, has filed a remittitur of $150, which was the only sum claimed for such services in the petition and which was the only sum which the evidence tended in any manner to show had been incurred on that account. This purges the error, and hence the judgment less the sum remitted is affirmed; but the defendant in error is adjudged to pay both the costs of this court and those of the appeal to the Court of Civil Appeals.

Affirmed less amount remitted.