*117APPLICATION FOR REHEARING
No. 572. Decided May 9, 1940.
BY THE COURT:Submitted on application of appellee for rehearing.
We have carefully read the application and the brief in connection therewith and in many particulars are in agreement with counsel for appellee.
We recognize that the injuries in this case were most severe, that the resulting excruciating pain and suffering was unusual in the extreme and, further, that there is marked probability that appellee will be permanently disabled. We were impressed with the moderation with which the medical experts, both for appellant and appellee, testified as to the prognosis of the injuries and were definitely of opinion that if there was any error in judgment it was in minimizing the future effects of appellee’s injuries.
Nor would we hesitate in supporting the amount of this verdict as against any claim that it was excessive and if we knew the respective elements and appraisals which went into the amount of damages fixed by the jury we would readily support the amount of the verdict, if it did not include the one improper element which the charge on the measure of damages permitted it to include.
We did have difficulty in determining what our judgment should be after full consideration of the charge on the measure of damages but we have not been in doubt that the charge was erroneous in the particular to which we directed attention in our former decision. So that,- our difficulty was to shape our judgment so that we would be satisfied that we had corrected any prejudice that may have resulted from the erroneous charge.
The difficulty with the argument for the rehearing is that too much reliance is placed upon conjecture. This speculative premise may be sound but we do not have the means of knowing that it is sound.
It is the rule that when a reviewing court has determined that a charge is improper in a matter material to the ultimate issues that it requires a reversal. We did not desire to reverse this case if it could be avoided and in ordering the remittitur fixed a sum which conclusively, in our judgment, removed any possible amount which had been improperly awarded by the jury under the charge of the court.
Counsel had the same opportunity and had available the same authority which was examined by this court to determine whether or not the charge which they prevailed upon the court to give was sound law. If they had examined the authority which they themselves cite and which is cited in the Charge Book from which the instruction was taken, they could readily have discovered that the citation would not support the charge.
Appellee is under no obligation to enter the remittitur and in view of subsequent developments which appear in the application for rehearing, it may be that such action should not be taken.
In any event we took the only legal step which we felt to be feasible to make the judgment in the trial court free from any prejudicial error to the appellant.
The application for rehearing will be denied.
HORNBECK, PJ., GEIGER & BARNES, JJ., concur.