On Rehearing.
On consideration of appellant’s motion for rehearing we have reached the conclusion that we erred in our former holding reversing the judgment and remanding this case. In our former holding our judgment was based on two grounds, to wit: (1) That the court erred in charging the jury that they, could assess damages for plaintiff on account of impaired earning capacity; (2) for submitting to the jury the question of damages for the loss of services of plaintiff’s deceased son.
In our former opinion we cited two cases, Railway Co. v. Choate, 159 S. W. 1058, and Railway Co. v. Spencer, 55 Tex. Civ. App. 456, 119 S. W. 716, and stated that said cases were cited by appellee in support of his contention. Counsel for appellee complains that this was a mistake on our part, but that said cases were cited in support of another proposition. This being true, we erred in this respect, which is here conceded. We also concede error was committed in reversing the judgment on the two grounds mentioned, as both relate to the court’s charge on the measure of damages. While the two cases were not cited by the appellant, as stated by us, we are of the opinion that the principle announced therein is applicable, and supports the proposition stated by us.
There was no assignment by appellant that the verdict was excessive, nor was there any contention in the court below by appellant that any such vice existed in the verdict. This being the condition of the record we feel that we were not authorized to reverse the judgment on these grounds, for as said by Mr. Justice Stayton in the case of Railway Co. v. Boozer, 70 Tex. 530, 8 S. W. 119, 8 Am. St. Rep. 615:
“We are of the opinion, however, that we would not be authorized to reverse the judgment on account of this charge, even if it was not the duty of the appellant to have asked a proper charge in this respect, for there is no complaint made that the verdict of the jury was excessive. The only effect the charge could have had would have been to cause an excessive verdict, and it in no way had a bearing on the question whether the appellant was liable at all under the facts.”
See, also, Railway Co. v. Motwiller, 51 Tex. Civ. App. 432, 112 S. W. 796.
Such being the case a rehearing is here granted, and as we conclude that there was no other error in the charge of the court, and as the evidence was submitted to the jury and they determined against appellant, we do not feel warranted in disturbing their finding. Therefore the motion for rehearing is granted and the judgment is affirmed.