
    WICHITA VALLEY RY. CO. v. WILLIAMS et al.
    (No. 716-4638.)
    (Commission of Appeals of Texas, Section B.
    Dec. 1, 1926.)
    1. Carriers <§^321 (3) — Charge that carriers must exercise very high degree of care in handling passengers was incomplete, and refusal to amend was error.
    In passenger’s action for injuries, charge that carriers are required to exercise very high degree of care in handling passengers is incomplete, and refusal to amend was error.
    2. Carriers <&wkey;32l (3) — Charge using merely adjectives in describing carrier’s duty of care toward passengers held incorrect practice.
    Use of mere adjectives in charge, stating degree of care to be exercised by carrier in handling passengers, is not correct practice as. against objection.
    3. Appeal and error <&wkey;2l6(3) — Requested special charge, after objection to erroneous charge, held not necessary to preserve point on appeal.
    Where carrier, sued for negligent injury, duly objected to erroneous charge on its duty of care to passengers, it was not necessary to request special charge thereon to preserve point on appeal.
    4.Appeal and error <&wkey;-1026 — Error not prejudicing litigant does not require reversal.
    Case should not be reversed because of error not reasonably calculated to prejudice rights of litigant against whom error was committed.
    A. Trial <&wkey;295(I)— Portions of charge ara equally binding.
    Each portion of charge is equally important and binding.
    6. Appeal and error <&wkey;930(2) — Entire charge is presumed to be read by jury.
    Juries are presumed to read entire charge.
    7. Appeal and error <&wkey;!032(3) — Erroneous charge as to carrier’s duty of care to passenger suing for injuries is presumed to have worked injury to carrier.
    In passenger’s action for injuries, erroneous charge that carriers are required to exercise very high degree of care towards passengers, without defining such care, is presumed to have worked injury.
    8. Appeal and error t&wkey;I064(l) — Case should be reversed where it is reasonably doubtful whether appellant was prejudiced by giving erroneous charge.
    Where it appears reasonably doubtful as to whether carrier, held liable for injuries to passenger, was prejudiced by giving of erroneous charge as to his duty of care, case should be reversed.
    9. Appeal and error <&wkey;1064(l) — Charge that carrier is required to exercise very high degree of care towards passengers, being erroneous and inconsistent with other charges, held to require reversal.
    In passenger’s action for injuries by carrier, charge that carrier must exercise very high degree of care in handling passengers, being erroneous and inconsistent with other charges defining negligence as want of ordinary care, held to require reversal.
    10. Appeal and error <&wkey;>999(2) — If prejudice influenced jury, judgment for any amount should be set aside.
    Judgment establishing liability for any amount should be reversed, if prejudice existed and influenced jury.
    11. Appeal and error &wkey;»I003 — Findings of fact against weight of evidence- may be set aside-by Court of Civil Appeals, where indicating prejudice-.
    Findings of fact, so greatly against -weight of evidence as to indicate prejudice, may be set aside by Court of Civil Appeals.
    12. Appeal and error &wkey; 1140(1) — Remittitur . should be required where sole question is ex-cessiveness of verdict (Rev. St. 1925, art. 1862).
    . Under mandatory provisions of Rev. St. 1925, art. 1862, if Court of Civil Appeals feels defendant is liable, and only question is extent of. damages, it must, in exercise of its sound judgment, estimate excessiveness of verdict and require rémittitur.
    
      Certified Questions from Court of Civil Appeals of Eleventh Supreme Judicial District.
    Action by Arthur V. Williams, by next friend, and others against the Wichita Yalley Railway Company. Judgment for plaintiffs,- and defendant appealed to the Court of Civil Appeals, which certified questions to the Com-1 mission of Appeals.
    Questions answered.
    Thompson, Barwise & Wharton, of Fort Worth and Kirby, King & Overshiner, of Abilene, for appellant.
    W. J. Cunningham and Ben L. Cox, both of Abilene, for appellees.
   POWELL, P. J.

This cause is before the Supreme Court upon the following certificate from the honorable Court of Civil Appeals of the Eleventh District:

“In the above-entitled cause pending in the Court of Civil Appeals for the Eleventh Supreme Judicial District of Texas, at Eastland, Tex., there have arisen issues of law which said Court of Civil Appeals deems it advisable to present to the Supreme Court for adjudication.
“Preliminary to said questions of law which are here certified to the Supreme Court, we deem it proper to make the following statement as to the nature of said issues of law, from the record in the case, which is sent up herewith, to wit:
.“This suit arose in the District. Court of Taylor county, Tex., and was tried before a jury. Appellee Arthur Y. Williams and other parties were plaintiffs in the trial court and the appellant, Wichita Valley Railway Company, was the defendant in the lower court. None of the issues' certified concern any of the plaintiffs except Arthur V. Williams, and who will be referred to hereinafter as plaintiff and the appellant, Wichita Valley Railway Company, will be referred to hereinafter as the defendant.
' “The case went to trial on plaintiff's second amended original petition and upon defendant’s second amended original answer. Plaintiff al- ■ leged, in substance, that he was a passenger on defendant’s line of railway ¡ from Wichita Falls; Tex., to Abilene, Tex., on the 1st day of November, .1924, and that, when the train upon which he was. riding had arrived at Abilene, it was necessary for said train to stop at a certain switch on Rose street in the city of Abilene, and thereafter back up to defendant’s station in Abilene something like a quarter of a mile. He further alleged that defendant, for a number of years prior to said date,.had been, accustomed to take on and discharge passengers at said Rose street switch, and that the custom was .well established, and that plaintiff, on the " occasion that he was a passenger, requested the conductor on said train to let him off at Rose -street switch, and it is alleged in the petition .that-the conductor agreed to do so. It was further alleged,that, when the train stopped at Rose street switch, plaintiff immediately got up from, his seat, and with due dispatch .proceeded 'to' alight from said train, and that, when, he had' reached the steps of the coach and was about to step from the top step thereof to the second step, the engineer on said train, without waiting a reasonably sufficient length of time to enable plaintiff to alight in safety, suddenly and without warning and with great violence catised the train to be backed up, and plaintiff was 'knocked off of the steps of the coach to the ground and sustained the injuries for which he sued, the petition alleging the following injuries, to wit:
“ ‘Eighth. Plaintiffs further allege that on said -occasion said minor plaintiff, Arthur V. Williams, sustained injuries and damages as follows, to wit: That his left arm and hand were crushed and mangled under the wheels of said train so that it was necessary to amputate the same, and same was amputated, about half way between the elbow and the wrist joint; by virtue of which he has suffered and will continue to suffer mental and physical pain and inconvenience; and'that plaintiff’s back was injured by virtue of the manner in which he was thrown to the ground, his back having struck the steps of the coach, or the end of a cross tie, or rock, or some other hard substance on defendant’s right of way, which severely bruised the muscles and nerves at the point where said plaintiff’s back struck said object, and that plaintiff’s back was thereby rendered very sore from said bruises and caused him severe pain and anguish, and that the vertebrae of his back at said point, to wit, in the small of his back, were somewhat strained by said fall, which also caused him great pain and anguish, but that said injuries to his back and the muscles thereof and the vertebrae were temporary injuries and have' almost completely healed and in time will probably heal entirely, but that the injury caused by the loss of his arm is a permanent injury. Said, plaintiff also alleges that said blow on his back where his back struck said hard substance was immediately over his kidneys, and that his kidneys were also bruised by the impact of said blow, and that by virtue of said bruises an excessive amount of albumen has been caused to accumulate on his kidneys which causes plaintiff considerable pain and will probably cause him pain and annoyance for á number of years to come; that said albumen irritates said plaintiff’s bladder and causes him pain, and that his kidneys are thereby caused to act more frequently than they otherwise would, and that this condition has continued since said injury and may con-' tinue for a number of years to come. Said plaintiff alleges that at the time of said injury he was engaged in the public schools of Abilene as a teacher in the high schools at the salary of $125 per month, and that he was also a student of medicine, and under the American mortality table he had a life expectancy of more than 25 years, he being at the date of said injury 20 years of age, and that plaintiff has been permanently injured and incapacitated to perform his duties in the future, or any other duties, and that his earning capacity has been permanently destroyed and impaired, by virtue of all of which injuries said plaintiff has been damaged in the sum of $45,000.’
“The defendant defended by general, denial, and specially pleaded that plaintiff was guilty of contributory negligence in attempting to .alight at the tim'e and plape alleged in the petition, knowing that it was not a regular passenger station;' and also defended on the ground that plaintiff’s injuries were due to unavoidable accident; and- also defended on the ground,that plaintiff was negligent in not alighting from the train with due dispatch after same had stopped at the switch. . ' ■'
“We refer both to the petition and the answer, and make said pleadings a part of this certificate in so far as they may be essential to the questions certified, but we deem the above brief statement therefrom sufficient for the purpose.
“The ease was submitted to the jury upon special issues; the court’s charge being as follows, and the issues were answered by the jury as indicated following each question:
“ ‘This case will be submitted to you upon special issues, and your answers to the same will constitute your verdict.
“ ‘ “Ordinary care” is that degree of care that an ordinarily prudent person would exercise under the same or similar circumstances. Failure to use “ordinary care” is negligence.
“ ‘Carriers of passengers are required by the law to exercise a very high degree of care in handling their passengers.
“ ‘By the term “proximate cause” is meant the direct, moving, or efficient cause, and without which the injury, if any, would not have occurred. ¶
“ ‘Bearing in mind the foregoing instructions, you will answer the following questions.
“ ‘Question No. 1: On and prior to November thé 1st, 1924, had defendant been accustomed to take on and discharge passengers at the switch on Rose street, where plaintiff Arthur V. Williams is alleged to have been injured? Answer “Yes” or “No.” Answer: Yes.
“ ‘Question No. 2: Was plaintiff Arthur V. Williams, on November 1, 1924, aware of the custom of the defendant, if any, in taking on and discharging passengers at the switch on Rose street described in plaintiff’s petition? Answer ‘‘Yes” or “No.” Answer: Yes.
“ ‘Question No. 3: Did the conductor of defendant’s train, on which plaintiff Arthur V. Williams was a passenger on November 1, 1924, agree with said plaintiff that he might be discharged from said train at the Switch on Rose street described in plaintiff’s petition? Answer “Yes” or “No.” Answer: Yes.
“ ‘Question No. 4: Did defendant’s employees, who were in charge of the train in question, stop said train at the switch in controversy a reasonably sufficient length of time within which to permit plaintiff Arthur V. Williams, by exercising reasonable diligence and dispatch, to alight from said train before said train was again put in motion? Answer “Yes” or “No.” Answer: No.
“ ‘Question No. 5: If you have answered question No. 4 in the negative, then answer: Were defendant’s said employees negligent in so failing to stop said train at said switch for a sufficient length of time to' permit said plaintiff to alight therefrom before the said train was again put in motion, if they did do so? Answer “Yes” or “No.” Answer: Yes.
“ ‘Question No. 6: Was such negligence, if any, the proximate cause of the injuries, if any, to plaintiff Arthur V. Williams? Answer “Yes” or “No.” Answer: Yes.
“ ‘Question No. 7: Did the defendant’s employees who were in charge of the train in question, cause said train to be backed up suddenly and violently, just as plaintiff Arthur V. Williams had reached, of was about to reach, the top step of the coach from which he was alighting, and thereby knock said plaintiff off •of said steps to the ground, as alleged in plaintiff’s petition? Answer. “Yes” or “No.” Answer: Yes.
“ ‘Question No. 8: Was the action of defendant’s employees, in charge of said train in question, in suddenly and violently backing up said train, if they did do so, negligence as that term has been defined to you in this charge? Answer “Yes” or “No.” Answer. Yes.
“ ‘Question No. 9: Was such negligence, if any, the proximate cause of plaintiff’s injuries, if any? Answer “Yes” or “No.” Answer: Yes.
“ ‘Question No. 10: Did Arthur V. Williams fail to use reasonable diligence to aligbt from said train in question? Answer “Yes” or “No.” Answer: No.
Question No. 11: If you have answered question No. 10 in the affirmative, then answer: Was the said Arthur V. Williams guilty of negligence, if any, in failing to use reasonable diligence, if he did so fail, to alight from the train at the time and place in question? Answer “Yes” or “No.” Answer: x.
“ ‘If you have answered “Yes” to the preceding question No. 11, then answer question No. 12: Did said negligence, if any, contribute directly and proximately to the injuries that said Arthur V. Williams received ? Answer “Yes” or “No.” Answer: x.
“ ‘Question No. 13: Was Arthur V. Williams guilty of negligence, if any, on his part, in attempting to alight where he did, instead of at the regular passenger station of the defendant? Answer “Yes” or “No.” Answer: No.
“ ‘Question No. 14Was Arthur V. Williams guilty of 'negligence, if any, in attempting to alight where he did at the time and- place in question? Answer “Yes” or “No.” Answer: No.
* “ ‘If you have answered “Yes” to the foregoing question, then answer question No. 15: Did said negligence, if any, contribute directly and proximately to the injuries sustained by the said Arthur V. Williams? Answer “Yes” or “No.” Answer: x.
“ ‘Question No. 16: What amount of money, If paid now in cash, would reasonably compensate Arthur V. Williams for the damages, if any, suffered by him, as alleged in the petition? Answer in dollars and cents. Answer: $24,000.
“ ‘Question No. 17: What amount of money, if paid now in cash, would compensate .plaintiffs J. D. Williams and his wife, Alice V. Williams, for the damages, if anv. suffered by them by virtue of the injuries, if any, to the plaintiff Arthur V. Williams? Answer in dollars and cents. Answer: $1,000.
“ ‘In answering questions 16 and 17 you will be guided by the following instructions:
“ ‘In determining the amount of damages due the parents of the minor plaintiff, if any, you Will take into consideration the loss of time of the minor plaintiff Arthur V. Williams, if any, proximately and necessarily caused by his injuries, if any, from the date of the alleged injury up until he arrives at his majority, to wit, March 28, 1925, and the expenses, if any, necessarily and reasonably incurred by said parents for medical attention and nursing, if any.
“ ‘In determining the damages of the plaintiff Arthur V. Williams, if any, as a result of' his injuries, if any, you will consider his lessened capacity to earn money, if any, after' arriving at the age of 21 years, and during the remainder of his life, and you may take into consideration his pain and suffering, if any, as-a result of such injuries, if any.
“ ‘The burden of proof is upon the plaintiffs to establish by a preponderance of the evidence the affirmative of special issues Nos. 1, 2, 3, 5, 6, 7, 8, and 9, and the burden of proof is upon the plaintiffs to establish by a preponderance of the evidence the negative of special issue No. 4.
“ ‘The burden of proof is upon the defendant to establish the affirmative of special issues Nos. 10, 11, 12, 13, 14, and 15.
“ ‘The burden of proof is upon the plaintiffs to establish the amounts, if any, called for in special issues Nos. 16 and 17.
“ ‘The burden of proof is upon the defendant to establish by a preponderance of the evidence affirmative answers to each and all of the special issues submitted to you herein at the request of the defendant.’
“On the original submission of this cause, we reversed and remanded it for another trial. We held at that time, as shown by our original opinion, that the giving of the following charge by the trial court over the timely objection of the defendant, was error: ‘Carriers of passengers are required by law to exercise a very high degree of care in handling their passengers.’
“Our opinion sets out sufficiently our views relative to the error in this charge, and we do not recede from our former holding that this portion of the court’s charge was error. We likewise held in our original opinion, and now hold and find, that the verdict of the jury was excessive under all the facts and circumstances of this case.
“Plaintiff in his motion for rehearing assigns error to our holding as above stated, and has moved us to certify certain questions in this case to your honors. Plaintiff contends, as one of his grounds for said motion, even though the charge in question is erroneous, that yet it Is harmless, and, while we adhere to our former holding to the effect that the charge in question was erroneous, and while we adhere to our former holding and finding that the verdict of the jury is excessive, we deem it advisable under the facts in this case to certify to your honors the following questions:
“(1) Was the giving of the charge herein-before stated erroneous? Was such error calculated to affect thé jury in their findings on issues submitted to them or any of the issues in questions 1, 2, 3, 4, or 7 of the court’s main charge?
“(2) If you answer the above question in the negative, then are we authorized to say, as a matter of law, from the findings of fact made by the jury, in response to questions 1, 2, 3, 4, and 7, that such findings of fact conclusively show that the railway company was negligent and that the erroneous charge on the issues of negligence submitted was immaterial.
“(3) We hold that the charge is erroneous and hold that the charge is inconsistent with ojher definitions submitted by the court to the jury. Is such error and inconsistency such as to be calculated to confuse and mislead the jury and require a reversal?
“(4) We find that the verdict is excessive, and, in light of the record, are inclined to reverse the judgment therefor. Have we the authority to reverse and remand because of the excessive verdict or judgment, or is it mandatory that we require a remittitur?”

The court’s charge to the effect that “carriers of passengers are required by law to exercise a very high degree of care in handling their passengers” is an incomplete statement of the law, and was subject to the objection and exception thereto seasonably presented and preserved by the railway company. See Railway Co. v. Halloren, 53 Tex. 46, 37 Am. Rep. 744; Railroad Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1183; Railway Co. v. Gresham, 106 Tex. 452, 167 S. W. 724; Railway Co. v. Keeling, 102 Tex. 521, 120 S. W. 847; Railway Co. v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829.

A proper charge on a carrier’s duty to its passengers was laid down in the Halloren Case, supra, as follows:

“Railroad companies, however, are not insurers of the safety of their passengers further than could be required by the exercise of (such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstances.”

The charge just quoted was approved by Chief Justice Cureton in the very recent case of Railroad Co. v. Conley, supra. In that case, the court said:

“In no case called to our attention has it been held by any appellate court that the degree of care defined in the Halloren Case is incorrect, and we are convinced that the definition there given is the accepted one in this state.”

It is equally well settled that the use of mere adjectives in a charge is not a correct practice as against objection;

In the Welch Case, supra, the jury was charged that the company must use “all possible care.” The charge was held erroneous. Justice Brown, speaking for the Supreme C.ourt, said:

“The charge is not more objectionable for what it means than for the want of any definite meaning. The object of giving a charge to a jury is to fuzmish them a guide by which they can determine from the evidence whether or not the party sought to be charged has done or failed to do the things which by law creates the liability. The term ‘all possible care’ might be understood by one man to mean all that the party could foresee, while it might mean to another all that might have been done as viewed after the occurrence. Besides, the law does not require everything to be done which might be foreseen, but only such as might appear to be necessary, having that care for the safety of the passengers that a very prudent man would have, and to exercise that high degree of care that such man would exercise under the same circumstances.”

Judge Brown went on to say, in his opinion in the Welch Case:

“The jury could, from the instruction given, have no just or intelligent idea of what the law required the defendant to do to secure the safety of passengers. In the nature of things, the law must leave it to the juries, in the exercise of a sound judgment, from their knowledge of men, and the ordinary course of human affairs, to determine whether or not a carrier of passengers has exercised the degree of care required by law, and for that reason the charge should be such as to give the best direction to their investigation.”

In the Keeling Case, supra, the Supreme Court, speaking through Justice Williams, declared :

“While we hold that the special charges were not affirmatively erroneous, and that they therefore furnish no cause for the reversal of the judgment, no more definite instruction having been requested, we agree with the Court of Civil Appeals in the opinion that such charges, attempting to define the carrier’s duty only by the use of an adjective, are not apt to convey to the minds of jurors any very definite conception of the subject. When such phrases are used, the standard by which the conduct of the carrier under investigation is to be judged should be given in connection with them, which standard is the conduct of prudent and skillful carriers in like situations. Jurors are not put in a position to determine what constitutes the ‘utmost’ or the ‘highest’ or the ‘high’ degree of care referred to in charges, unless they are also told that it is that which such prudent and skillful carriers employ.”

It will be observed that the charges in this case are very much like the one in the case at bar.

In the Conley Case, supra, Chief Justice Cureton made the following statement:

“To say that a jury, unadvised as to the meaning of a term of such intricate and variant usage, would likely give it a correct interpretation in the charge in the instant case is to be too credulous. To say the least, an explanation should have been given when objections were made.”

In the Conley Case, aforesaid, the jury had been told that the railway company must exercise the greatest degree of care short of'a warranty.

In the instant case, the railway company had the right to have the charge made more complete and conform to the law as laid down in the Halloren Case, supra. It was error for the court to refuse to amend its general charge in view of the company’s objections.

It is true that no special charge in this connection was requested by the railway company. But that was not essential. In fhe Conley Case, upon this point, the court said:

“But in the instance of a defective or erroneous charge on a subject or issue which the court has undertaken to -charge upon, the objections required by article 1971 take the place of special charges, and render it unnecessary that the latter be tendered. It is immaterial whether the matter objected to in the court’s charge is a mere defective or incomplete statement of the law or issue to be determined, or iu affirmatively erroneous; objections which sufficiently specify the error will preserve the point on appeal, without the necessity of again directing the court’s attention to the. same subject by special charge.”

Of course, no case should be reversed because of an error which is not reasonably calculated to prejudice the rights of the litigant against whom the error was committed. In this case, it is contended that the jury were told that negligence was the want of ordinary care, and that, since the jury found the railway company guilty of negligence, they must have found that the company did not even exercise ordinary care, and that, if .such was the intention of the jury in finding negligence, it was immaterial whether or not the company had used the high degree of care mentioned in the charge. It is true that the jury were so charged in defining negligence. In other words, they were charged that negligence was the want of ordinary care. But, it is equally true that they were also charged that a different degree of care was required of railway companies toward their passengers. Each portion of a charge is equally important and binding. The juries are presumed to read the entire charge. It is but reasonable to assume that the jury, in determining the negligence of the railway company, applied the company’s duty as defined in the charge, and that, in finding the plaintiff not guilty of negligence, they applied the ordinary care theory. This is essentially a negligence case, and the issues submitted required the jury to understand and apply these definitions.

In the case at bar, the Court of Civil Appeals held:

“It stands unchallenged that it was error for the court to fail to define high degree of care, and no decision of our courts or any rule provides any escape under the harmless error route. We can, see injury in the failure to so charge the jury.”

Under the record here presented, the presumption is that the erroneous ’ charge worked injury. See Emerson v. Mills, 83 Tex. 385, 18 S. W. 805; Railway Co. v. Johnson, 91 Tex. 569, 44 S. W. 1067; Railway Co. v. Greenlee, 62 Tex. 349; Lamar v. Railway Co. (Tex. Com. App.) 248 S. W. 34.

In the Emerson Case, supra, the court said:

“An erroneous charge is presumed to have been injurious, and appellees must show that it was harmless.”

In the Johnson Case; supra, it was stated:

“The charge being erroneous it is presumed to have been injurious to the interests of the defendant, and ‘in such case the duty does not devolve upon the party complaining to show that he was thereby injured, but upon him in whose favor the verdict was returned to show that the complaining party was not prejudiced by the error.’ ”

In the Greenlee Case, supra, our Supreme Court said:

- “While the appellate court will indulge in the presumption that the verdict and judgment are right, yet, when it is apparent that the charge upon a vital issue is erroneous, it yields to the contrary presumption that the verdict, which might -tie founded upon án erroneous charge, is itself vicious. In such case the duty does not devdlve- upon the party complaining to show that-he was thereby injured, but upon him in whose favor it was returned, to show that the complaining party was not prejudiced by the error.”

In the Lamar Case, supra, our court said:

“We think this is correct, and that every reasonable doubt should be resolved in favor of the one ex-red against. We do not think it can be said that ‘in all probability’ the verdict in the case at bar was not influenced by the withdrawal of this testimony. Therefore we think the giving of this charge, withdrawing this evidence, was not only ein-or, but eri-or for which the vcase should be reversed.”

It appears reasonably doubtful, at least, as to whether or not the company was prejudiced by the giving of this erroneous charge. Therefore the case should be reversed as held-by the Court of Civil Appeals.

Bearing in mind ,;what we have already said,-we recommend.that each portion of certified question No. 1 be answered in the af‘firmative. , . ■

Having,, recoinmended an affirmative answer to the first question certified, we think it unnecessary to answer, th.e second question certified-. It was only propounded upon the, theory that the first question might be answered in-the. negative.,

We recommend that the third question certified be answered in the affirmative.

TliisK brings ’ us £0 a. consideration of ’the fourth' question certified. The statute inquired about (article 1-862 of the 1925 Code [Rev, StJ) reads as follows:

“In civil cases appealed to a Court of Civil Appeals, if such court is of the opinion that the vei-difet and judgment of the trial court is excessive and that said cause should be reversed for that reason only, then said appellate court shall -indicate .to such .party, or his attorney, within what time he may file a remittitur of such excess. If such - remittitur is so filed, then the court shall reform and affirm such judgment .in accordance therewith; if not filed as indicated, then to be reversed.”

This same-Statute (then article 1631) was before our Supreme Court in the case of Wilson v. Freeman, Receiver, 10S .Tex. 121, 185 S. W. 993, Ann. Cas. 1918D, 1203. In that case, Justice. Yantis. answers the question cer-r tilled as follows: ....

“We think said statute is mandatory, and that the Court of Civil. Appeals should not have fev versed and remanded the case upon the ground' alone that the verdict was excessive. - True,, it is difficult to ascertain the amount of the ' excess, but this difficulty arises in most eases of excessive vex'diets. Fed? instance, if' a vei-dict is excessive on account of the passion !arid prejudice of the jui-y, aroused by inflammatory speech, it is difficult, and generally impossible, to , ascertain, with accuracy, what poi-tion of the verdict was assessed because of the influence of inflammatoiy speech, and what portion of the vei-dict was based on the proper elements pf damage, legally recoverable; or, if the -vei-dict assessed for the loss of a limb, or for some similar injui-y, is excessive, still it is difficult to ascertain with certainty the exact amount of the excess. All the Oourt of Civil Appeals can do, and all that is required of it to do, by. said .statute, is to exercise its sound judicial judgment and discretion in the ascertainment of what amount Would be reasonable compensation for the injury sustained, and treat the balance as excess. The court must first determine what amount would be reasonable before it can determine whát amount would be unreasonable. Texas & N. O. Ry. Co. v. Syfan, 91 Tex. 562, 44 S. W. 1064. Having determined that the vei-dict is excessive, or unreasonable, it is necessarily implied, that the court has decided upon an amount that would be reasonable com-' pensation for the injury which was actually’ suffered, in which event it should authorize a1 remittitur of the excess above the1 amount which would be reasonable compensation for the in-' jury, in accordance with its sound judgment. We think that in "the practical administration of justice this is all that is. required of the court to do in such cases, but we bfelieve this much is the mandatory requii-ement of' the statute’ quoted.”

This pronouncement.by our Supreme Court has never been overruled or modified'.’ We feel that we cannot,improve upon,the statement of the law as made by tb,is learned and lamented judge.

It must be remembered that this- . statute has always referred to the excessive-' ness of the verdict as tlié. sole or only cause1 for reversal. It is true,! of course, that no-Court of Civil Appeals,'should .allow'any ver.dict and judgment to stand if that court is-of the view that the question of liability was-determined by a prejudiced jui-y1.' The Court of Civil Appeals could afid : should set aside-any judgment establishing liability for any amount if it appears to that court that prejudice existed and influenced the jury at the-time it made such findings.- 'If a finding of facts establishing any liability were so much; against the weight of the evidence as to indicate 'prejudice, 'clearly the Court of CivilAppeáls could set such ’fifidirigs aside. But,, where the Court of Civil Appeals feels - that the company is liable, and the only question is liow much the dámá’gés are/ then it is the duty of the Court of Civil Appeals to exercise its “sound judgment" in estimating the ex-cessiveness of the verdict as returned' by the jury. If the statement of facts before the Court of Civil Appeals should be so incomplete and insufficient as to make it impossible-for that’ court to exercise “sound ju4gment”'’ in.estimating the damages due a given plain-;tiff, another question might be presented as, to whether that court cohld reverse the case for that reason' only.' In the instant ease, nú such situation is- presented, and we do not decide it.

We recommend that the fourth question certified be answered to the effect that this statute is mandatory and that a remittitur should be required.

CURETON, C. .1. The opinion of the Commission of Appeals answering certified questions is adopted, and ordered certified to the ' Court of Civil Appeals. 
      ©soFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     