On Rehearing. Upon rehearing we have concluded that we were in error in holding that the assignment which we sustained, as shown by our original opinion, could be cured by a remittitur. The authorities bearing upon this question do not state the true rule with that degree of consistency and clearness that is to be desired. It is insisted that whether or not an error of the kind under consideration may be cured by requiring a remittitur is to be determined by whether or not the evidence tends to show that a definite amount, if any, was expended or incurred for the particular purpose. Upon mature consideration it occurs to us that this is correct. Our earlier view was that, if a definite amount was claimed, the error could be corrected by remittitur of the entire amount alleged for the particular purpose. We think that the rule may be stated that, whenever a general verdict includes an illegal part, the error can be cured by a remittitur only in case the evidence shows, or tends to show, a definite amount is affected by the illegality, or some amount which, if indefinite, certainly does not exceed a certain sum. That this does not clearly appear from the authorities relied on in our original opinion is quite evident. For instance, in G., H. S. A. Ry. Co. v. Duelin,86 Tex. 450, 25 S.W. 406, there was a general verdict for $9,000. Plaintiff testified that he thought his doctors' bills would amount to $1,000, and that, in his opinion, his bill for medicines would be about $500. Although the pleadings made a claim for doctors' bills, it made none for medicines. But plaintiff's opinion that the medicine bill would amount to about $500, was not, it seems, the only evidence on the question, for it is also said:
"It was also shown by other testimony not objected to that his account for drugs was very large although the amount was not stated."
There was therefore evidence, it seems, tending to show a definite amount, and also other evidence tending to show a large but indefinite amount. The case can only be made to conform to the rule — if the above be a correct statement of the rule — by assuming that the jury would not, in any event, find an amount in excess of plaintiff's estimate. The proposition is so well established, however, by authority, that a verdict of a jury, based in part upon error, cannot be corrected by a remission of a part thereof, unless the error can be seen to affect only some definite part of the verdict that all the authorities, if they can be harmonized so as to preserve this principle, should be given a construction that will do so. A recognition of this principle of distinguishing and harmonizing the cases is illustrated in Houston Electric Co. v. Green, 48 Tex. Civ. App. 242, 106 S.W. 463; Houston Chronicle v. Wegner (Tex.Civ.App.) 182 S.W. 45; and Dickey v. Jackson (Tex.Com.App.) 1 S.W.2d 577.
In the case at bar, as pointed out, the evidence tends in no manner to establish any definite amount due for medical services. At the same time the evidence shows that there was, or may have been, something due. There is no way to estimate with certainty whether it would be more or less than $500, the amount claimed in the pleadings. It is therefore not certain that a remittitur of any given amount would cure the error. A recognition of the above as the governing rule requires a remand.
The appellant, in its motion for rehearing, also complains of the omission of this court to discuss in our opinion its assignments based upon the refusal of the court to submit *Page 446 to the jury questions Nos. B, C, and D, as follows:
Question No. B: "Did Grabner know, at the time he entered his `working place' on the occasion of his injury, that trouble had occurred therein by falling rock, and that there was danger in said place from falling rock?"
Question No. C: "Would an ordinarily prudent man have known, under all of the facts and circumstances surrounding Grabner at the time he entered his working place, on the occasion of his injury complained of, that there was danger of falling rock?"
Question No. D: "Would an ordinarily prudent man, under all the facts and circumstances surrounding Grabner, have entered his working place on the occasion of his injury?"
Perhaps we should have discussed these assignments. Undoubtedly appellant had the right to request, and have the court give, a special issue submitting to the jury, for their finding, such facts as were alleged to constitute contributory negligence on the part of plaintiff, and supported by some evidence. Fox v. Dallas Hotel Co., 111 Tex. 461,240 S.W. 517.
We do not think, however, that the special issues requested and refused, as above set out, would have constituted a proper submission of such issue. Question No. B does not call for the finding of an ultimate issue, but of one or more evidentiary facts. The knowledge of danger, disconnected from any act of plaintiff with reference thereto, certainly would not constitute negligence. A finding of the jury in answer to such question would be determinative of no issue in the case. The same is true of question No. C.
The vice in question No. D is that the jury in their consideration are not confined to the facts alleged in the pleadings to constitute contributory negligence. All "the facts and circumstances surrounding Grabner" were not necessarily the particular facts claimed to constitute negligence. Any proper submission of the issue would have confined the jury to only such facts and circumstances, if any, as were alleged to be negligent. Darden v. Denison (Tex.Civ.App.) 3 S.W.2d 137; Rosenthal Drygoods Co. v. Hillebrandt (Tex.Civ.App.) 280 S.W. 882; Tyrrell Hdw. Co. v. Orgeron (Tex.Civ.App.) 289 S.W. 1040; Munger Automobile Co. v. American Lloyds of Dallas (Tex.Civ.App.) 267 S.W. 304.
Such are the considerations upon which we overruled these several assignments.
The facts alleged to constitute contributory negligence were three: (a) That plaintiff had knowledge of the danger of falling rocks arising from the existence of a squeeze; and (b) that plaintiff, with such knowledge, entered the workroom in the mine where the injury occurred; and (c) that an ordinarily prudent person with such knowledge would not have so entered the room, and therefore plaintiff's doing so was negligence. This is but one issue, although consisting of at least three elements. Such issue should be submitted as a whole and not in parts. St. Louis, S. F. T. Ry. Co. v. Wilson (Tex.Com.App.) 279 S.W. 808.
For the reasons discussed, the motion for rehearing is granted, the judgment heretofore affirming this case upon the filing of a remittitur is set aside, and the cause is remanded to the trial court for a new trial, in accordance with this opinion. *Page 568