When the decision of this case was announced, I entered by dissent from the conclusion of the majority of the court that the charge of the trial court submitting the issue of damages did not authorize the jury to assess double damages, by including as separate items of damage what can only be properly regarded as one element of damage.
In compliance with the statute, I now make the following statement of the grounds of my dissent:
The charge complained of is accurately copied in the opinion of the majority. The subdivisions of this charge which I think are clearly obnoxious to the well-established rule *Page 363 against the double submission of the same element of damage, are:
"(a) Bodily injuries, if any, physical pain and suffering, if any, and bodily inconvenience suffered by him, if any, from February 22, 1928, down to the date of this trial, and such as you may find he will reasonably and probably suffer in the future, if any."
"(c) The reasonable value of his decreased earning capacity from February 22, 1928, down to the date of this trial, if any.
"(d) The reasonable present value of his diminished capacity to perform labor and services in the future beyond this trial, if any."
It seems to me that the court could not have more clearly submitted plaintiff's bodily injuries as an element of damage separate and distinct from his physical pain and suffering, the bodily inconvenience suffered by him, and the value of his decreased earning capacity. I am wholly unable to follow the reasoning of the majority opinion in the holding, in effect, that the clause "bodily injuries" as used in this charge are mere words qualifying the meaning of the other elements or items of damage submitted by the charge. Such construction seems to me to violate every known rule for the construction of our written language. If the law permitted a plaintiff who had, as appellee has, lost a portion of an arm and a leg through the negligence of the defendant, to recover damages for such lost members in addition to damages for the physical and mental pain and suffering and the lost earning capacity caused by his injury, his right to recover for such lost members could not be more clearly submitted than is done in this charge. Ry. Co. v. Butcher, 98 Tex. 462,84 S.W. 1052; Ry. Co. v. Nesbit, 40 Tex. Civ. App. 209, 88 S.W. 891; Stamford Oil Co. v. Barnes, 55 Tex. Civ. App. 420, 119 S.W. 872.
It is probably true, as stated in the opinion of the majority, that a number of cases have been reversed on the ground that the charge of the trial court authorized a recovery of double damages when the jury, in considering their verdict, did not so understand the charge and did not award double damages. The irrelevancy of this observation is apparent when the language of the charge in question is only susceptible of being construed as authorizing recovery of double damages. If the language of this charge could be held doubtful, there is nothing in the record of this case which authorizes the holding that the jury was not misled thereby and did not include double damages in their verdict. On the contrary, the large amount of the damages awarded by the jury in response to submission (a) of the charge indicates that in fixing the amount the jury did allow damages for the loss of appellee's arm and leg in addition to the pain and suffering, bodily inconvenience, and loss of earning capacity caused by his injury, and it is certainly no reflection upon the intelligence of a jury of laymen to assume that they understood the charge to authorize damages for each of the items or elements mentioned therein.
If the charge could be construed as not a positive erroneous instruction, it was clearly misleading, and upon this record the judgment should be reversed and remanded on that ground. Ry. Co. v. McCraw,43 Tex. Civ. App. 247, 95 S.W. 82.
In my opinion the judgment should be reversed and the cause remanded.