Alabama Great Southern Ry. Co. v. Norrell

• Citation: 143 So. 904,225 Ala. 503
• Decision Date: 06 October 1932
• Docket Number: 7 Div. 86.
• Parties: ALABAMA GREAT SOUTHERN RY. CO. v. NORRELL.
• Court: Supreme Court of Alabama

143 So. 904

225 Ala. 503

ALABAMA GREAT SOUTHERN RY. CO. v. NORRELL.

7 Div. 86.

Supreme Court of Alabama

October 6, 1932

Rehearing Denied Nov. 3, 1932.

Appeal from Circuit Court, De Kalb County; A. E. Hawkins, Judge.

Action for wrongful death by J. R. Norrell, as administrator of the estate of Robert Norrell, deceased, against the Alabama Great Southern Railway Company. From a judgment for plaintiff defendant appeals.

Affirmed conditionally.

Goodhue & Lusk, of Gadsden, for appellant.

Hugo L Black and W. C. Dalrymple, both of Birmingham, for appellee.

THOMAS J.

The suit was upon count 5, by the administrator of the deceased for death from personal injury, the result of a head-on collision between two of defendant's motorcars engaged in interstate commerce. Special damages were claimed for "the loss of the care, attention, instruction, training, advice and guidance which they would have received during their minority from their father, Robert Norrell, if he had not been killed as aforesaid." The defendant's pleas were the general issue and assumption of risk.

The complaint, alleging that deceased was an employee of defendant and engaged in the discharge of his duties as such, was not subject to the demurrer directed thereto. Defendant owed him the duty not to injure him negligently. Mobile & O. R. Co. v. Williams, 219 Ala. 238, 121 So. 722; Id., 221 Ala. 402, 129 So. 60; Louisville & N. R. Co. v. Parker, 223 Ala. 626, 138 So. 231.

The oral charge of the court states the respective positions and their claims as given statement in the pleadings. When the whole of the oral charge is considered, there is no reversible error in the portion to which exception was reserved. The jury were instructed, under that pleading and the evidence, as follows:

"*** They say and the plaintiff alleges that as a proximate consequence of the negligence on the part of the company or its employees, this deceased man lost his life, and they claim in this complaint they are entitled to damages to compensate the widow and the minor children for the loss of his services, his care and protection and support he gave to them. This is in substance, gentlemen of the jury, the charge they make here in this complaint. ***

"In a general outline, gentlemen of the jury, upon which damages may be based, is as follows: you may take into consideration the age, the help, the expectancy of the life of the deceased, his earning capacity, his care, his mode of treatment toward his family, and the amount he contributed out of his wages to them for their support in determining what the plaintiff would be entitled to. Not only that, gentlemen of the jury, but you may take into consideration the care and training he might have given his minor children during their minority in determining and estimating the amount of recovery."

When referred to the pleading and evidence the fact that at one point in the charge the trial court used the word "family," yet the context was such as to be understood to mean "widow and minor children" for whom only the damages were sought under the Federal Employers' Liability Act (45 USCA §§ 51-59). The charge of the court was within the rule of the cases. Louisville & Nashville R. R. Co. v. Fleming, 194 Ala. 51, 69 So. 125; Louisville & N. R. Co. v. Porter, 205 Ala. 131, 87 So. 288; Louisville & N. R. Co. v. Parker, 223 Ala. 626, 138 So. 231, and authorities there cited, State and Federal; Norfolk & Western Railway Co. v. Holbrook, Adm'x, 235 U.S. 625, 35 S.Ct. 143, 59 L.Ed. 392; Louisville & Nashville Railroad Co. v. Holloway, 246 U.S. 525, 39 S.Ct. 379, 62 L.Ed. 867; Chesapeake & Ohio Railway Co. v. Kelly, as Adm'x, 241 U.S. 485, 494, 36 S.Ct. 630, 60 L.Ed. 1117, L. R. A. 1917F, 367; Michigan Central Railroad Company v. Vreeland, Adm'r, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, Ann. Cas. 1914C, 176; Gulf, Colorado & Santa Fe Railway Co. v. Moser, 275 U.S. 133, 48 S.Ct. 49, 72 L.Ed. 200.

It is declared that the damages recoverable under the Federal Employers' Liability Act by an administrator are limited to the present value of pecuniary benefits to which dependents [in this case the widow and minor children] are entitled, and the charge of the court permitting the jury to award damages based upon the amount the deceased contributed out of his wages to his family [other adult children], if not limited to dependents, would be affirmative error. L. R. A. 1916E, 159, note; Southern Railway Co. v. Vessell, 192 Ala. 440, 68 So. 336, Ann. Cas. 1917D, 892; Gulf, Colorado & Santa Fe Railway Co. v. Moser, supra. However, when the whole charge is considered, the jury were instructed in the oral charge as indicated and by given charge 1 as follows: "If you find for plaintiff in this case under the evidence and the charge of the Court, you may take into consideration in determining the amount of damages to be awarded, the care, attention, instruction, training, advice, and guidance, which one of decedent's disposition, character, habit, intelligence and devotion to his parental duties or indifference thereto, as shown by the evidence, would reasonably be expected to give to his infant children during their minority, and the pecuniary benefits therefrom to said children, and include the pecuniary value of the same in the damages assessed." This made the matter plain to the jury.

This is to say, the trial was had on count 5 of the complaint, charging that the deceased left surviving him a widow, Mrs. Mary Norrell, and dependent children, Ostella Norrell and Harry Norrell, and asking for additional and special damages for the loss of the care, attention, instruction, training, advice, and guidance which the minor children would have received during their minority from their father, Robert Norrell, if he had not been killed as aforesaid. The jury had this count with them, and the court in the beginning of the oral charge limited the recovery to compensation in damages for the widow and minor children, as claimed; and, as stated, the use [by the court] of the word "family" was but to be referred to the dependent members of the family, to wit, the minor children during minority, and the widow. The charge was self-correcting as to the word employed. Charge 1, given at the request of the plaintiff, made the instruction clear, and that charge has been held good by this court. Alabama Great Southern R. Co. v. Cornett, 214 Ala. 23, 29, 106 So. 242. The jury had a right to award damages to the children for the loss of the care, attention, instruction, training, advice, and guidance which one of decedent's disposition, character, habit, intelligence, and devotion to his parental duties, or indifference thereto, as shown by the evidence, would be reasonably expected to be given by that father to his infant children during their minority, and also the pecuniary benefits therefrom to said children; such helps are estimated and included in the pecuniary value of the same in the damages assessed. This was not double damages. Louisville & N. R. Co. v. Parker, supra.

The case cited by appellant, Gulf, Colorado, & Santa Fe Railway Co. v. Moser, Adm'x, 275 U.S. 133, 48 S.Ct 49, 72 L.Ed. 200, is not in point for the reason that the charge in that case was seasonably objected to and the defendant requested special instruction or charge correctly...