
    EASTERN TEXAS ELECTRIC CO. v. BAKER et al.
    (No. 468-3772.)
    
    (Commission of Appeals of Texas, Section A.
    Oct. 24, 1923.)
    1. Appeal and error <&wkey;l066 — Instruction to consider element of damages not pleaded nor proved held reversible errftr.
    In a personal injury suit, an instruction to consider future suffering in assessing damages held reversible error as reasonably calculated to cause rendition of a verdict for damages not pleaded or proved, irrespective of the sufficiency of the evidence to warrant a finding for the sum awarded without regard to future suffering.
    2. Appeal and-error i&wkey;1! 170-(9) — Court of Civil Appeals cannot hold submission of issue not raised by pleadings or evidence harmless.
    Rule 62a (149 S. W. x), adopted under authority of Const, art. 5) § 25, and Rev. St. art. 1524, does not authorize the Court of Civil Appeals to hold harmless submission of an issue not raised by the pleadings or evidence, in violation of R. S. art. 1971, requiring submission of controverted issues only; the rule not being intended to deprive a party of a substantial right given by statute or cast on one deprived of such right the burden of showing that he was injured.
    Error to Court of Civil Appeals of Ninth Supreme Judicial District.
    Action by Dora Baker and husband against the Eastern Texas Electric Company. Judgment for plaintiffs affirmed by Court of Civil Appeals (238 S. W. 335), and defendant brings error.
    Reversed and remanded.
    Orgain & Carroll, of Beaumont, for plaintiff in error.
    A. D. Lipscomb, of Beaumont, for defendants in error.
    
      
      Rehearing denied December 5, 1923.
    
   BISHOP, J.

Defendant in error,' Dora Baker, joined by her husband, David G. Baker, filed suit in the district court of Jefferson county against the Eastern Texas Electric Company, plaintiff in error, alleging in their petition that on or about the 25th day of April, 1920, Dora Baker boarded one of the passenger cars of plaintiff in error, paid her fare, and became a passenger thereon; that as she attempted to leave said car the agent in charge of same struck her on the jaw with his hand or fist, and as her back was turned to him in alighting from the ear he braced himself and kicked her in the back, throwing her to the ground with the force of the blow, causing her great physical injury and bodily pain, and great terror and shame, and other mental suffering; that she suffered actual injury and damage in the form of bruises on her body, nervous shock, and pain, anguish, and humiliation, and other like injury, as the proximate result of such violence or misconduct, and the humiliating memory and sense of the outrage remain as. a permanent injury, to plaintiff’s actual damage in the sum of $5,000. The plaintiff in error having answered by general denial among other pleadings, the case was tried before a jury, resulting in a verdict for defendants in error in the sum of $500. On appeal to the Court of Civil Appeals the judgment of the district court was affirmed (238 S. W.‘335), and the case is before the Supreme Court on writ of error.

In the trial court only one -special issue was submitted to the jury, as follows:

“What amount of money paid now will compensate the plaintiff Dora Baker for the injuries she has sustained? You will answer this question by stating the amount you find. In this connection, and for your guidance in estimating the damages, you will assess said damages at such a sum of money as if paid in hand at this time will fairly and justly compensate her for the injuries alleged to have been sustained by her in her petition, and which you find from the evidence she has sustained, and in so doing you will take into consideration all the mental and physical pain suffered by her, if any, and such as will be suffered by her in the future on account thereof, if any.”

Plaintiff in error objected to this charge on the ground that there was neither pleading nor evidence that Dora Baker had suffered a permanent physical injury, and requested the following special instruction, which was by the court refused:

“Gentlemen of the Jury: You are instructed that in answering special issue No. 1 of the court’s charge you will not allow the plaintiff, Dora Baker, any damages for physical pain she may suffer in the future, if any.”

Error is assigned on the charge of the court as objected to, and on the refusal to give the special requested charge. In discussing these assignments the Court of Civil Appeals uses this language:

“It is also true, as contended by appellant under this assignment, that there was no evidence to the effect that Dora Baker would suffer physical pain in the future or beyond the date of the trial, and that therefore, both because of a failure to plead such element of damage and the lack of evidence to show it, the trial court was in error in declining the special charge taking such element from the consideration of the jury. The court not only refused the special charge expressly withdrawing such element of damage from the jury’s consideration, but instructed the jury, substantially, that in answering issue No. 1 as to the amount of damages they might take into consideration such physical pain and suffering, if any, as the evidence might show them Dora Baker would suffer in the future, if any, and this charge is also made the basis of one of appellant’s assignments. We shall not determine whether the action of the court in permitting the jury to take into consideration such physical pain as might be found by the jury would be suffered by Dora Baker in the future would not be erroneous in some cases in the absence of pleading and evidence, as here complained of; but, after carefully considering the entire record in this case, we have concluded, and feel certain, that the action of the court in refusing the special instruction and, in permitting the jury to take such future pain, if any, into consideration, was not prejudicial to appellant in this, case, and was clearly harmless error, if error at all.”

‘ The court having recited the facts in evidence to the effect that the blow which the conductor struck Dora Baker in the face was a severe one, and staggered her, and that the kick in the back was also severe, and she suffered much physical pain from both, that she suffered severely from headache and soreness in the neck, back, and sides, and stiffness in her jaw, and was caused to go to bed, and that the manner in which she was assaulted in the presence of passengers caused her much shame and mortification, and that she would always suffer shame and humiliation from such treatment, concluded that “the evidence would be sufficient to warrant a finding by the jury in plaintiff’s favor for $500 for such physical pain and suffering, and such mental anguish and shame as she suffered in consequence of such assault upon her, without regard to pain of any character, physical or mental, that she might suffer therefrom in the future,” and held that, if it was error for the trial court to charge the jury to take into consideration physical future pain, the evidence might show she would suffer, if any, it was harmless in the face of the amount awarded in this ease under rule 62a (149 S. W. x.), and that such error was not calculated to cause and did not. cause the jury to render a larger verdict against plaintiff in error than would otherwise have been rendered.

Rule 62a provides:

“No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court; and, if it appear to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error: Provided, if the erroneous action or failure or refusal of the trial judge to act shall prevent the proper presentation of a cause to the Court of Civil Appeals, and be such as may be corrected by the judge of the trial court., then the judgment shall not be reversed for such error, but the appellate court shall direct the said judge to correct the error, and thereafter the Court of Civil Appeals shall proceed as if such erroneous action or failure to act had not occurred.”

The Constitution of Texas (article 5, § 25) is as follows:

“The Supreme Court shall have power to make and establish rules of procedure, not inconsistent with the laws of the state for the government of said court and the other courts of this state, to expedite the dispatch of business therein.”

R. S. 'art. 1524, is as follows:

“The Supreme Court shall have power to make, establish and enforce all necessary rules of practice and procedure, not inconsistent with the laws of this state, for the government of said court and all other courts of the state, so as to expedite the dispatch of business. in said courts.”

This rule was not intended to deprive a party to a suit of a substantial right given by statute. Nor .was it intended to cast the burden on the party deprived of such right to show that he had been injured thereby. Prior to its adoption it was held that the giving of a charge on an issue not raised by the evidence was reversible error unless it clearly appeared that the jury was not misled thereby. T. & P. Ry. Co. v. McCoy, 90 Tex. 264, 38 S. W. 36.

The question here involved is whether the Court of Civil Appeals is authorized under rule 62a to hold harmless an error of the trial court in submitting to the jury an issue raised neither by the pleadings nor the evidence. R. S. art. 1971, provides that in the charge to the jury the court shall submit .controverted issues only. This is a substantial right to which a litigant is entitled in the trial of his case. Plaintiff in error had the right to have the damages assessed against it by the jury under proper instructions submitting only the elements of damage as raised by the pleadings, and supported by evidence. It has been denied this, in that the jury was instructed, in assessing damages, to consider physical pain that defendant in error Dora Baker might sustain in the future, if any. This charge was misleading. It indicated that there was evidence tending to show future physical pain. The presumption of law is that such error as complained of here amounted to such a denial of plaintiff in error’s rights as was reasonably calculated to cause, and probably did cause, the rendition of an improper verdict, and the mere finding by the Court of Civil Appeals that the evidence was sufficient to warrant a finding by the jury for $500 for mental anguish and shame and physical pain suffered in consequence of such assault and battery, without regard to future mental and physical pain, is not sufficient to overcome such legal presumption. The evidence may have warranted a verdict in a larger or smaller amount than that rendered. This would 'not show that the jury in arriving at the amount of the verdict did not consider the charge directing a consideration of the issue as to whether defendant in error Dora Baker would suffer future physical pain. It is not possible for an appellate court to say the jury did not consider this erroneous charge in arriving at the amount of damages. Lancaster v. Fitch (Tex. Sup.) 246 S. W. 1015; Weisner v. M., K. & T. Ry. Co. (Tex. Com. App.) 207 S. W. 904; Peden Iron & Steel Co. v. Jaimes (Tex. Com. App.) 208 S. W. 898; Golden v. Odiorne (Tex. Com. App.) 249 S. W. 822.

We have therefore concluded that the Court of Civil Appeals was in error in holding harmless the error of ‘the district court in submitting this issue to the jury, and recommend that the judgment of both said courts be reversed, and the cause remanded.

CURETON, C. J.

The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission of Appeals on the question discussed in its opinion. 
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