Duke v. Hatcher

It may be conceded that the measure of damages applicable to the case made by the testimony was as appellant claimed it to be, and therefore that it was error for the trial court to refuse the special charge set out in the statement above. Lott v. Ballew, 198 S.W. 645; Pressler v, Warren, 57 Tex. Civ. App. 635, 122 S.W. 909: Brooks v. Davis,148 S.W. 1107; Smith v. Milam, 143 S.W. 293; Miller v. Oil Co.,166 S.W. 1182; Ry. Co. v. Norton, 188 S.W. 1011; Ins. Co. v. Griffith,185 S.W. 335. But it does not follow that the judgment should therefore be reversed. To accomplish that the action of the trial court must not only have been erroneous, but it must appear from the record sent to this court that the error was one calculated to cause, and which probably did cause, the rendition of an improper judgment. Rule 62a for the government of Courts of Appeals (149 S.W. x). The only effect the error (if it was one) could have had prejudicial to appellant's rights was to cause the jury to find in appellee's favor for a sum in excess of that they otherwise would have found.

Keeping the testimony in mind, we do not think it at all likely it had that effect. And it seems that appellant took the same view of the matter, for he does not complain here, as he must to be entitled to relief on that account, that the verdict and judgment are excessive. Ry. Co. v. Stewart, 164 S.W. 1059; Ry. Co. v. Goff, 146 S.W. 573; Ry. Co. v. Sears, 155 S.W. 1003.

The judgment is affirmed.