Dallas Railway & Terminal Co. v. Hendrix

On Motion for Rehearing On motion for rehearing appellee contends that under Rule 434, Texas Rules of Civil Procedure, it was error for us to remand that part of the trial court's judgment which decreed $391.65 for damages to appellee's automobile. Our Supreme Court has already passed on the point adversely to appellee's contention. Fisher v. Coastal Transport Co., 149 Tex. 224, 230 S.W.2d 522. The case above cited was a negligence case. The trial court rendered a judgment based on separate jury findings as to property damage and personal injuries. On appeal it was held that the submission as to personal injury damages was fatally defective because the court failed to include the elements of ""reasonable probability"" as to future pain and mental suffering. The Court of Civil Appeals, 225 S.W.2d 995, held that the error did not affect the entire judgment and affirmed the judgment as to property damage, reversing it in part only, so that another trial would be limited to a consideration of the personal injury damages. But the Supreme Court held the issues were indivisible, reversed the Court of Civil Appeals, and sent the entire case back for retrial. Four of the Justices on the Supreme Court dissented, but they dissented only on the question whether the court's submission was fatally defective. Apparently there was no dissent on the point now before us.