On Appellant’s Motion for Rehearing
Appellant’s motion for rehearing, filed herein through his original attorneys on December 1, 1950, and supplemented by written argument in his behalf, jointly filed December 7, 1950, by such original attorneys and by new attorneys in his behalf, on rehearing, Messrs. Kelley, Mos-heim and Ryan, as well as appellee’s answer thereto filed December 12, 1950, have been carefully considered.
Meanwhile, this Court has corrected its original opinion herein in two small verbiage particulars, of which all counsel for both sides have been advised.
As the stated filings on rehearing disclose, the opposing parties differ as to what the record on rehearing presents for this Court’s consideration, especially as affects the appellant’s original claim, under its ninth point-of-error, “that the verdict and judgment were grossly excessive, without support in the evidence, and contrary to the overwhelming preponderance of the evidence.”
After a careful re-consideration of the cause, inclusive of all such filings in behalf of both parties, this Court is unconvinced of error in its original disposition; wherefore, no extended additional opinion upon rehearing is considered indispensable.
Of course, if the pleadings and evidence for the appellee did not bring his cause within the purview of the two federal statutes therein prescribed under 'by him, as the appellant originally contended and repeated on rehearing, this Court’s former judgment should be set aside; but a re-examination of its former opinion, and of the authorities upon which it was based, convinces it anew that its contrary holding to the appellant’s position was correct.
As concerns the appellant’s reiterated protest against the jury’s verdict for, and the trial court’s fixing of the amount of ap-pellee’s damages at $85,000.00, it is again held that this Court is unable to say that such allowance was shown, by any evidence it is permitted to consider, reversibly excessive, under the authorities cited in the original opinion upon that issue.
The re-examination of the record shows that, in its order overruling the appellant’s amended motion for a new trial, the court below made, in substance, these findings:
1. That the original and amended motions for new trial were both duly filed;
2. that the supplemental motion for new trial was not duly filed, and the court struck the supplemental motion for new trial for that reason;
3. that it then proceeded to overrule the amended motion for new trial.
Such re-examination of it further shows that appellant’s amended motion for a new trial did not complain of the excessiveness of the verdict against it, on the ground that the jury had been guilty of misconduct in considering any amount of attorneys’ fees, or income-tax, etc., that the appellee might have to pay out of the verdict it might render in his favor.
Wherefore, those contentions are not properly brought into this Court for any consideration thereof by it in determining whether or not the amount of the verdict so returned by the jury was excessive.
Indeed, upon that question, while the verdict is large in amount, it has not been, from the evidence, made to appear here that it was more than the jury were properly authorized to find was reasonable compensation to the appellee for his injuries.
The motion for rehearing will be refused.
Refused.