Opinion
Application No. 26,196.
Decided March 4, 1942.
Error to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County.
Suit by Tom Rogers against the Baker Hotel of Dallas to recover damages for personal injuries inflicted upon plaintiff by Frank Hickman, an employee of the said hotel company, during an altercation between the two which it was alleged was brought about by the said Rogers attempting to use the telephone in violation of instructions given him by Hickman. A judgment for the plaintiff was reformed and affirmed by the Court of Civil Appeals, 157 S.W.2d 940, and defendant has brought error to the Supreme Court.
The application is refused for want of merit.
Callaway Reed, O.D. Montgomery and Frank C. Brooks, all of Dallas, for plaintiff in error.
W. Glenn Polk, of Dallas, for defendant in error.
The opinion in this case of the Court of Civil Appeals is reported at 157 S.W.2d 940. We refer to that opinion for full statement of the facts and issues.
The opinion of the Court of Civil Appeals holds that where appellant did not complain that a verdict for appellee was excessive, the trial court's alleged error in its charge on measure of damages, on ground that charge permitted recovery by appellee for physical pain appellee might suffer in the future, when there was allegedly no evidence justifying such charge, was harmless.
We disagree with the above holding. The Hotel Company's application contains no point of error on the above holding, because the opinion of the Court of Civil Appeals goes further and correctly holds that there is some evidence in this record raising the issue of future pain and suffering.
We also here note that Rogers, the appellee in the Court of Civil Appeals, has filed no application for writ of error in this Court. We therefore do not express an opinion as to whether or not this record raises an issue of exemplary damages.
The application for writ of error is "Refused For Want Of Merit."
Opinion delivered March 4, 1942.