INTERNATIONAL & GREAT NORTHERN R. Co.

v.

BRAZZIL.

(Texas Supreme Court, October 21, 1890.)

Injury to Passenger-Release and Discharge-Ratification. In an action a passenger for personal injuries, the railway company set up as a defense by a release executed by the plaintiff, and the fact that money was accepted in consideration thereof. Plaintiff sought to avoid the release on the ground that he was insane or unconscious when it was executed. The court instructed the jury that the release was valid if the plaintiff used or retained the money he received, knowing that he had received it in satisfaction of his injuries, and did not promptly disaffirm the contract, but acquiesced in the same. The only evidence of any ratification by the plaintiff of the release consisted in the fact that he had in some manner disposed of the money paid him. Held, that the instruction given was proper.

Same Same. In such case the court also instructed the jury that the release was void if the passenger was unconscious and not in his right mind, or if at the time he signed it he was suffering to such an extent that he was incapacitated to comprehend the character of the contract. This instruction was objected to on the ground that there was not in the same paragraph or in the same connection a charge as to the effect of the ratification of the release. Held, that since the jury had been already fully instructed on that point the charge was not misleading.

Personal Injuries-Excessive Damages. As the result of the injuries received by plaintiff he was rendered a wreck both in mind and body. At the time of the trial he was subject to epileptic fits and unfit for labor. Before the accident he was an able bodied mechanic. His sufferings had been great and would probably continue during the remainder of his life. Held, that an award of $20,000 actual damages was not excessive.

Same-Exemplary Damages-Accident Caused by Defective Roadbed.In an action for an injury to a passenger the testimony showed that the road was in a very bad condition, there being an abundance of old iron and rotten ties. It appeared, however, that bad weather contributed largely to the result, and that the company was engaged at the time in putting the road in better condition. The time of trains had been lessened to 10 miles an hour. Held, that an award of $5000 of exemplary damages in addition to $20,000 actual damages was not justified, since the circumstances showed that there was not such an entire disregard of the safety of passengers as would justify the recovery of such large exemplary damages.

APPEAL from Smith County District Court.
Whitaker & Bonner, for appellants.

J. M. Duncan and T. N. Jones, for appellee.

GAINES, J.-This is an action brought by appellee to recover of appellants damages for personal injuries received by him while a passenger on a train of the Missouri Pacific

Railway Company, while being operated on the road of its co-defendant. This is the second appeal by the defendants in this suit. The facts of the case are fully shown in the former opinion, which is reported in 72 Tex. 233.

Upon the subject of release which was executed by the plaintiff to the defendant, the court gave the following instruction, to-wit: "That is, gentlemen, if the plaintiff was insane, or unconscious and incapacitated to contract at the time he signed the release under the rules above laid down, after the said Brazzil became conscious that he had signed such a release, and was informed of its nature and character, and that he had received said money and paid it out on his debts with a knowledge of where said money came from, and that he had received it from defendants in compromise of and in release for the injuries he had received, and he did not promptly disaffirm the contract, but acquiesced in same, then you will find for defendants in favor of said release." This charge is complained of, " because it does not instruct the jury in that paragraph as to the effect of a ratification of said release, and charges the jury that the validity of the same depends entirely upon the consciousness of the plaintiff at the time of said release;" and also because "the charge is misleading, in that it makes a knowledge on the part of the plaintiff at the time he used and paid out said money necessary to a ratification on his part, when the contract is a valid one, even though he had no such knowledge, if, after he regained consciousness, the same was not promptly disaffirmed by him." The only evidence of any ratification of the release consisted in the fact that the plaintiff had in some manner disposed of the money paid him in consideration of the release, and we think the instruction is strictly in accordance with the law as laid down by this court upon the former appeal, and pointedly presented the issue of fact made by the testimony. The two important questions upon this branch of the case were: Was the plaintiff mentally capable of contracting when he signed the release; and second, did he expend or retain the money paid him after he became conscious of the source from which he obtained it, and after he was capable of understanding the nature and consequences of the contract he had made. The charge is not subject to the objections urged against it. The following charge is also assigned as error: "But if, at the time he signed said release, he was unconscious, and not in his right mind, this would defeat the release or if, at the time he signed said release, he was suffering from physical pain, fevers, and mental anguish to such an extent as to incapacitate him to comprehend the character, extent, and conse

quences of the contract, then this would defeat the release." We understand the objection to the charge to be that it does not in the same paragraph, or at least in the same connection, charge the jury as to the effect of a ratification of the release. An examination of the entire instructions upon this. branch of the case discloses that the jury were properly charged, both as to the law affecting the validity of the release, and as to the facts necessary to be established in order to show a ratification in case it was invalid, and in such a manner that the jury were not misled. It is not necessary, nor is it practicable, in every charge to present every phase of a case in one paragraph, nor does it conduce to clearness to attempt to do so. The charge given by the court was, we think, sufficiently clear and explicit upon the effect of a ratification of the release. It is also complained that the verdict is contrary to the law and evidence, both upon the issue of the sanity of the plaintiff at the time he executed the contract, and upon that of a ratification. The large sum awarded as damages by the verdict of the jury has demanded at our hands a very careful consideration of the testimony presented by the record. It is voluminous and conflicting, and a discussion of it here will subserve no useful purpose. It is sufficient to say that there is evidence to support the verdict in the particular complained of in the assignment under consideration, and that the finding is not against such an apparent preponderance of evidence as, under the well recognized rule of this court, to justify a reversal of the judgment.

It is also insisted that the damages assessed by the jury are excessive, and that no exemplary damages should have been awarded. But there was testimony tending strongly to the conclusion that as a result of his injuries the plaintiff has been rendered a wreck both in mind and body. He is subject to epileptic fits, and his physical and mental condition is such as to render him unfit to labor. He was, before the accident, an industrious and able bodied mechanic. His sufferings must already have been great, and in all probability will continue so long as he shall live. Under such circumstances we cannot say that the amount of the actual damages awarded is the result of passion or prejudice in the minds of the jury, and therefore cannot reverse the judgment on account of the amount of the recovery only. But in regard to the exemplary damages the case is different. The testimony, it is true, shows that the road was in very bad condition. There was old iron and rotten ties in abundance upon track. But, on the other hand, the accident occurred during an unusual spell of weather, not such, it is true, to exonerate the appellants from liability for the accident,

but such as to have contributed largely towards bringing it about. The company was putting the road in a better state of repair at the time the accident occurred. Many new ties had been put in it, and new rails had been supplied. The time of the trains had been lessened to 10 miles per hour. It was negligence not to have a better roadbed and track; but these circumstances show that there was not such an entire disregard of the safety of persons who were being carried by the appellants' trains as will in our opinion justify the recov ery of large exemplary damages in addition to the large verdict for actual damages awarded by the jury. If the plaintiff sees fit to remit the exemplary damages, the judgment will be affirmed, otherwise it will be reversed and remanded.

Release of Claims for Personal Injuries. See Chicago, etc., R. Co. v. Mills (Ill.), 11 Am. & Eng. R. Cas. 128; Chicago, etc., R. Co. v. Lewis (Ill.), 19 Am. & Eng. R. Cas. 224, note 233; Hawes v. Burlington, etc., R. Co. (Iowa), 19 Id. 220; Atchison, etc., R. Co. v. Johnson, 11 Id. 1; Tompkins v. Clay St. Hill R. Co. (Cal.), 18 Id. 144; Dixon v. Brooklyn City & N. R. Co. (N. Y.), 26 Id. 203; Bussian v. Milwaukee, etc., R. Co. (Wis.), 10 Id. 716; St. Louis, etc., R. Co. v. Higgins (Ark.), 21 Id. 629; Stone v. Chicago, etc., R. Co., 30 Id. 600, note 606; Cook v. Western, etc., R. Co. (Ga.), 28 Id. 317, note 33 Id. 519.

Excessive Damages for Personal Injuries.-See Texas & Pac. R. Co. v. Johnson (Tex.), 42 Am. & Eng. R. Cas. 7; Pence v. Chicago, R. I. & P. R. Co. (Iowa), 42 Id. 126; Missouri Pac. R. Co. v. Texas Pac. R. Co. (C. C.). 42 Id. 34; Brown v. Hannibal & St. Jo. R. Co. (Mo.), 42 Id. 87, note 92; Western & A. R. Co. v. Young (Ga.), 42 Id. 135; Missouri Pac. R. Co. v. Jones (Tex.), 41 Id. 363, note 368; Metropolitan St. R. Co. v. Moore (Ga.), 41 Id. 240; Gulf, C. & S. F. R. Co. v. Redeker (Tex.), 41 Id. 296; Heddles v. Chicago, etc., R. Co. (Wis.), 39 Am. & Eng. R. Cas. 645; Whalen 7. Chicago, R. I. & P. R. Co. (Iowa), 38 Id. 141; Houston & T. C. R. Co. v. Lee, 34 Id. 452, note 456.

In fixing the amount of damages for personal injuries, the jury should take into consideration the age and condition in life, the nature and extent of the physical injuries, and the bodily pain and mental anguish suffered by the injured person and any and all such damage which it appears will reasonably result to him from such injuries in the future where the injury consisted of a severance of the nervous connection in the left arm, resulting in a paralysis and contraction of the fingers, though he still had the use of his arm to the elbow, held, that a verdict of $8,500 was not excessive. Ridenhour v. Kansas City Cable R. Co., Sup. Ct. Mo., June 2, 1890.

The plaintiff, while a passenger on defendant's road, received an injury owing to a collision, which resulted in a rupture. The business in which he was engaged, the piano trade, required some lifting, and he was unable to do any work after the accident. Prior to that time he had earned $300 per month. The physician called, testified at the trial, that owing to the rupture plaintiff could not engage in violent exercise, and would be deprived of some of his physical strength. The physician testifying for defendant, however, said that the rupture would not shorten plaintiff's life, but might tend to lengthen it. The jury awarded plaintiff a verdict for $7,000. Held, that the damages were not excessive, and the verdict would not be disturbed. Wedekind v. Southern Pac. R. Co., Nevada, May 23, 1889.

In Ohio & M. R. Co. v. Judy, 120 Ind. 397, it was held that a verdict of $5,500 was not excessive, in an action by a passenger for personal injuries, where the evidence showed that such a passenger was a cattle dealer, aged fifty-one, crippled in one arm, whose services were worth from $150 to $200 per month, and that the accident permanently disabled his other and prevented him from attending to his business, besides causing him much pain.

arm,

A woman 53 years old, was injured in a wreck and probably crippled for life, owing to the injury of her spinal cord. There was no external evidence of injury, except that in a day or two there was some discoloration. She had suffered a great deal from the injury, been unable to walk, and would probably be unable to walk for a long time, and always have a weak back. Seven years before she had been in delicate health for two or three years, and to within two years of the accident she had had attacks of neuralgia, often complaining of her back. $15,000 damages were awarded. Held, that that the judgment would be affirmed on condition that plaintiff remit $5,000. Furnish v. Missouri Pac. R. Co., Mo. Sup. Ct., June 30, 1890.

In Louisville S. R. Co. 7. Minogue, Ky. Ct. of Appeals, Sept. 13, 1890, it appeared that the plaintiff was injured in a collision which occurred through the gross negligence of the railroad company. The plaintiff was thrown from her seat to the floor of the car. Her injuries consisted of externa! bruises and a nervous shock. She was confined to her bed for seven or eight weeks, had become unable to work, and one of her legs had become partially paralyzed. The trial took place five months after the accident, and it was not satisfactorily shown that her injuries were permanent. Held, that a verdict for $10,000 was exesssive, even for punitive damages. When Exemplary Damages Should Be Given Injured Passenger-Damages as Punishment.-A passenger injured in a railway accident is not entitled to recover exemplary damages merely on account of the "gross negligence" of the company's employes, but only where there was willful misconduct, or entire want of care indicating a presumption of conscious indifference to consequences. Under Code Ga. § 3066, providing that “in every tort there may be aggravating circumstances for which additional damages may be given, "either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff,' an instruction that exemplary damages may be given as a punishment' of defendant is erroneous. Chattanooga R. & C. R. Co. v. Liddell, Ga. Sup. Ct., May 7, 1890.

ALABAMA GREAT SOUTHERN R. Co.

V.

HILL.

(Alabama Supreme Court, June 19, 1890.)

Action for Personal Injuries-Physical Examination of Plaintiff.-In an action to recover damages for personal injuries, the trial court has authority to order the plaintiff to submit to a physical examination of her person by physicans, and if the discretion of the court to order such examination is abused by refusing to make such order where a proper case is clearly made, it is ground for reversing a judgment in favor of plaintiff. Same Refusal to Direct Examination-Female Plaintiff.-The fact that the plaintiff, in an action for personal injuries, was a young woman of ner