OPINION ON MOTION EOR REHEARING.
The appellant in its motion for rehearing in this case vigorously assails the decision of this court, in holding that there was not reversible error in the charge of the court therein set out as to the measure of damages. The contention of appellant is, that said charge instructed the jury to assess double damages, in that it permitted a recovery for both “inability to work,” and “diminished capacity to labor.” As the question of double damages is a matter of considerable importance, by reason of the frequency with which it is urged as an objection to charges of trial courts in personal injury cases, we feel called upon to add something to what we have said on this subject in the opinion heretofore rendered in this case.
Appellant is not without high authority which tends to support its contention, but we think this case can be differentiated from the leading eases relied upon in the brief of its able counsel, and we are not disposed to extend this doctrine beyond the limit which it has already reached. We doubt not, that many cases have been reversed for the alleged reason that the jury were misled by the charge of the court, when nothing of the kind occurred. In the language of Justice Williams of our Supreme Court: “On such questions as this it is fair to allow something for the intelligence of the jurors, and assume that common sense would save them from the commission of such an error, unless the court by its charge should misdirect them.” Knittell v. Schmidt, 16 Texas Civ. App., 7, 40 S. W., 509. Why assume that the court has misdirected the jury when it is plain that the court understood and intended to give to the jury the correct rule of law, and has used language that is not calculated to mislead a man of Ordinary intelligence, and can be held to have done so only by putting a hypercritical construction on the language used ? We doubt not that juries, in cases of this character, sometimes render excessive verdicts, but the true solution of such verdicts will generally he found in the fact that they were led by their sympathies or prejudices, and not that they were misled by the charge of the court. If such cases are to be reversed, let it be charged to the passions of the jurors, where it belongs, and not to their want of intelligence, by saying that they were misled by the charge- of the court. And it were better that error be committed on this ground than on the other, for in such case injury is done to no one but the plaintiff in the particular case; whereas, if error be committed by being over technical as to the charge *90of the court, a precedent will be made which will remain to pester many worthy litigants in courts of justice.
Counsel for appellants ask: What is the difference between “inability to work” and “diminished capacity for labor?” The same that there is between “loss of time” by reason of injuries and “diminished capacity to labor,” which has so often been urged to mean one and the same thing. But Justice Williams in ICnittell v. Schmidt, supra, thought there was a difference. He said: “In most cases of personal injury loss of time results from total suspension of the power to work, while if this power is not entirely gone, for the time there is a diminished capacity. This difference between the two elements is suggested to the ordinary mind by the two expressions used.” Paraphrasing this sentence, we may say that inability to work means the total suspension of the power to work, and diminished capacity to labor means lessening, without totally destroying the power to labor. Inability means without ability; lessened capacity, means that partial ability remains. As such expressions are commonly used, a jury would not probably understand them as meaning the same, and that they were instructed- to allow damages twice for one and the same cause. Gulf, C. & S. F. Ry. Co. v. Brown, 16 Texas Civ. App., 93, 40 S. W., 614; Texas Central Ry. Co. v. Stewart, 1 Texas Civ. App., 642, 20 S. W., 964; Gulf, C. & S. F. Ry. Co. v. Wilson, 79 Texas, 371, 15 S. W., 280, 23 Am. St. Rep., 345, 11 L. R. A., 486; San Antonio & A. P. Ry. Co. v. Belt, 24 Texas Civ. App., 281; 59 S. W., 612; Missouri, K. & T. Ry. Co. v. White, 22 Texas Civ. App., 424, 55 S. W., 594; Gulf, C. & S. F. Ry. Co. v. Warner, 22 Texas Civ. App., 167, 54 S. W., 1066-7.
Appellant relies in support of its position upon Ft. Worth & R. G. Ry. Co. v. Morris, 45 Texas Civ. App., 596, 101 S. W., 1039, which was reversed because the charge with reference to loss of time and diminished capacity to labor, directed the jury to assess double damages. The court in that case said it was “constrained” to so hold by force of the opinion in International & G. N. Ry. Co. v. Butcher, 98 Texas, 462, 84 S. W., 1052. In delivering the opinion the court says: “This charge, in terms, directed the jury, not simply what to consider in assessing the damages, but to assess the damages, etc. In Railway Co. v. Butcher, supra, the court says: The Honorable Court of Civil Appeals cites in support of its conclusion Texas & Pac. Ry. Co. v. Morin, 66 Texas, 225, 18 S. W., 503. The difference between the charge quoted in the opinion in that case and that before us is, that the court told the jury to consider (italics ours) the facts grouped in each proposition in arriving at the sum of compensation for all effects of the injuries, etc. And so in this case, the difference is that here the court did not, in terms, direct the jury to assess damages on account of the items mentioned, but only informed them that they had “the right to consider” such matters in assessing the damages.
It is hardly conceivable that a jury of the commonest intelligence would conceive it to be right and proper to allow compensation twice for the same loss.” Knittell v. Schmidt, supra, and we do not think the jury could have interpreted the charge in this case as directing them so to do.
*91Believing, after a careful review, that we committed no error in the opinion rendered herein, the motion for a rehearing is overruled.
Overruled.
Writ of error refused.