*111On Application eor Rehearing.
Bonner, Associate Justice.This case comes before us on rehearing on the proposition that “ the court erred in holding that the failure to appoint a special guardian for appellee in the court below ivas such fundamental error as would be considered when first made in this court, and being considered was fatal, and in reversing the judgment, and remanding the case for a new trial.”
This proposition has been elaborately considered in the able briefs and arguments of counsel.
The objects intended by our former statutes (Pasch. Dig., arts. 6969-6973; Laws 15th Leg., 187, secs. 134-138) in regard to the appointment of special guardians were tivo-fold: First. That the minor, in addition to the general guardianship which the court itself, from its long established powers and duties, is required to give, should also have the protection of a special guardian, whose duty it was to examine in detail into the subject matter in regard to which the appointment was made; and for the faithful performance of which, oath, bond and security were required. Second. That the minor should have been so legally represented that the judgment, whether for or against him, should be a protection to the other party. The statute, though now repealed, was in our opinion a most salutary one.
Having been intended, however, as a shield for the protection of the minor, it should not be used as- a sword to his injury. Although it should have been strictly enforced by the court, yet as this was not done in this case, but as the next friend was treated and recognized by the court as the proper representative of the minor, and the trial proceeded upon this theory without objection from the other party, we are, upon further consideration, of the opinion that it was an irregularity, but not such fundamental error as should require a reversal of the case when presented for the first time in this court. Particularly should it be so held when it is apparent, as in this case, that the interest of the minor has not been prejudiced by the failure to appoint a special guardian, and when, should the judgment be affirmed, his interest can still, if necessary, be protected by the appointment of a general guardian, or if reversed, the practice which required the appointment of a special guardian would not now prevail. If this should not be the rule, the other party, who was also in fault in not making the objection, could await the result of the trial. If favorable, acquiesce in it; if unfavorably then object for the first time in this court.
The rights of minors, who in law are not capable of protecting *112themselves, should receive a more liberal construction and protection than those of adults.
These considerations had great weight with the court on the original hearing, and the former decision was mainly based upon the previous case of Bond v. Dillard, 50 Tex., 303. A more careful examination of that case, however, shows that we misconceived the facts as applied to the one now under consideration.
In that case Isaac R. Dillard, who was plaintiff both in his individual right and as next friend of the minors —his interest to some extent-conflicting with that of the minors,— at the August term, 1816, voluntarily took a nonsuit. At the succeeding trial term he was permitted to intervene, but as said in the opinion (50 Tex., 309), “ So far as the record shows, this was done in his own individual right, and not in behalf of the minors, if he could appear for them at all as next friend.” It did not affirmatively appear then that they were represented even by next friend, and in the language of the opinion, “ the proceedings and judgment as to them seem to have been without lawful authority.”
We are of the opinion that the rehearing should be granted, and it is accordingly so ordered.
Beheabixg graxted.
[Opinion delivered June 24, 1881.]
Fetal Opixiox.
Gould, Chief Justice.— 1. The question of the effect of the death of the defendant pending this appeal was disposed of in the opinion of Justice Bonner, delivered April 23, 1880, to which reference is made,
2. So, also, the question growing out of the failure of the court to appoint a special guardian was disposed of in the opinion delivered June 21, 1881, on the occasion of granting a rehearing. Beference is here made to that opinion, and the views there expressed are adopted as the conclusions of the court on that subject, after hearing full argument thereon on the second hearing of the case. But whilst we decline to reverse the case, because of this omission, we think that the rights of the minor should yet be secured, and that no payment of the amount recovered other than a payment into court should be allowed, until a guardian of the estate of the minor shall have duly qualified.
3. It is claimed that the court erred in refusing to charge the jury “ not to allow vindictive damage or smart money, if they found that the injury was the result of an innocent mistake or accident.” An *113examination of the charge given on the subject of exemplary damages shows that it embraced the substance of the instruction asked. The jury were only allowed to find exemplary damages in case they believed that, “ in his conduct on that occasion, defendant showed such an entire want of care as to evince that he was probably conscious of the probable consequences of his carelessness and indifference to the danger to which plaintiff was subjected.” They were told if they “ did not believe that defendant evinced such a gross want of care as would manifest on his part an indifference to any injury likely to result to plaintiff therefrom,” to find only compensatory damages. Again, they were told if the “ act was the result of a want of ordinary care and diligence,” defendant was responsible only for actual damages. Clearly, appellant has no ground to complain of the refusal of the charge asked on the subject of exemplary damages.
4. But it is said that the verdict is not supported by the evidence, and is excessive, etc. In this connection the point is made .apparently for the first time in this court, that, under the evidence, the court should not have submitted to the jury the question of exemplary damages. If the injury to plaintiff was the result of defendant’s negligence (and there was certainly evidence to support a verdict that, it was), then we would be unable to say that the damages assessed so far exceeded the actual damage to plaintiff as to show that the verdict was the result of passion or prejudice, and was manifestly excessive. The nature of the injury, the probable mental suffering which it may cause to plaintiff when he comes to years of maturity, were considerations which may have legitimately led the jury to the conclusion that the sum found was not more than would compensate plaintiff for the actual damage suffered. In a case of this nature, where the actual damages may include mental suffering through life, the court can rarely set aside a verdict as excessive. We are unable to see any legal ground for doing so in this case.
5. In regard to the objection now made, that the court erred in submitting to the jury the question of exemplary damages, we remark that the record does not show that this objection was made in the court below, nor is the point properly embraced in any assignment of error. In this state of the record, and with a verdict which, if confined to actual damages, we are unable to set aside as excessive, it is by no means clear that the error, if it were error, would be fatal to the judgment.
But our opinion is, that the case as exhibited by the evidence called for a charge on the subject of exemplary damages. The- criin*114•inal indifference of the defendant to results was a fact which thejury were at liberty to infer from the gross mistake which he1 either made or permitted to be made, and the grievous injury which was liable to result and did result therefrom. If there was other evidence tending to negative any wrong intent or actual indifference on his part, still the existence or non-existence of such criminal indifference was a question of fact for the jury, and was rightly submitted to them. If the conduct of the defendant in the discharge of his duty as accoucher was so grossly negligent as to raise the presumption of his criminal indifference to results, we very greatly doubt whether it should avail to exempt him from exemplary damages, for him to show that he had no bad motive, and that he acted otherwise in a manner tending to show that he was not, at heart, indifferent. Where the act is so grossly negligent as to raise the presumption of indifference, evidence that in other matters connected therewith he had shown due care, and that-actual indifference would have been in fact indifference to his own interest, should, we think, not be allowed for any other purpose than to be considered by the jury in fixing the amount of exemplary damages. But whatever may be the true rule on this subject, we do not think that there was such evidence negativing indifference on the part of defendant ás made it improper for the court to charge on the subject of exemplary damages. Cochran v. Miller, 13 Iowa, 128, is authority for exemplary damages for gross negligence in a physician in treating a patient. See, also, Caldwell v. N. J. Steamboat Co., 47 N. Y., 282-296, as bearing on the subject of exemplary damages for negligence, in what cases the court should charge on the subject, and in what cases an erroneous charge thereon would be fatal to the judgment.
6. The application for a new trial on the ground of newly discovered evidence is so manifestly insufficient that it is not proposed to discuss it.
This case has received repeatedly our most careful consideration, and our final conclusion is that no error appears in the action of the court, and that the judgment be affirmed.
Affirmed.
[Opinion delivered May 12, 1882.]