Allen v. Riedel, 4194

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: GRISSOM; Calvert
• Citation: 425 S.W.2d 665
• Parties: Ivan J. ALLEN, Appellant, v. Patsy H. RIEDEL et al., Appellees. . Eastland
• Docket Number: No. 4194,4194
• Decision Date: 19 January 1968

Page 665

425 S.W.2d 665 Ivan J. ALLEN, Appellant,
v.
Patsy H. RIEDEL et al., Appellees. No. 4194. Court of Civil Appeals of Texas.
Eastland. Jan. 19, 1968.
Rehearing Denied Feb. 16, 1968.

Turner & Seaberry, Virgil T. Seaberry, Jr ., Bill B. Hart, Eastland, for appellant.

Thompson, Coe, Cousins & Irons, Dallas, Jack W. Frost, Eastland, for appellees.

GRISSOM, Chief Justice.

This suit was brought under the authority of Article 4671, known as the Wrongful Death Act. On Sunday, November 7th, 1965, Dr. Albert F. Riedel and his wife and their children, of Dallas, were visiting the Ivan J. Allens on the Allen ranch in Eastland County. Mrs. Allen was Dr. Riedel's aunt. Dr. Riedel, Mr. Allen and some of the Riedel children spent the morning building deer blinds on the ranch. About 30 minutes after they returned to the Allen home for lunch, a neighbor telephoned Mr. Allen that two car loads of people were climbing over his fence and suggested that he see them. He went to investigate. Dr. Riedel went along. When they reached the trespassers, Mr. Allen suggested to Dr. Riedel that he stay in the pickup. Mr. Allen put the trespassers off his ranch. Immediately thereafter, while Dr. Riedel was standing about 47 feet from Mr. Allen, in or near some trees and weeds, he was shot and killed by Mr . Allen. Dr. Riedel's widow and children sued Mr. Allen for the damages they suffered as a result thereof.

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A jury found that (1) Mr. Allen deliberately aimed his rifle; that (1A) he was aiming at some person; that (2) he did not intentionally fire his rifle; that (6) in carrying his rifle with the safety catch in the 'off position' Mr . Allen was guilty of negligence which (7) was a proximate cause of Dr. Riedel's death; that (10) Mr. Allen allowed his rifle to be pointed at Dr. Riedel and that (11) this was negligence and (12) a proximate cause of Dr. Riedel's death. The jury found the amount of damages sustained by Dr. Riedel's four children in varying amounts, ranging from $35,000.00 for Dana Scott Riedel, the oldest, to $78,000.00 for Allison Lynn Riedel, the youngest, and that Mrs. Riedel was damaged $50,000.00.

All issues inquiring what pecuniary loss a child sustained contained the same instructions with reference to what the jury might consider. To illustrate, issue 16, the instruction in connection therewith and the answer thereto were as follows:

'What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate the Plaintiff, Allison Lynn Riedel for the loss sustained by her as the result of the death of her father, Albert Riedel?

In answering this issue, you are instructed that you may take into consideration only the pecuniary loss, if any, sustained by Allison Lynn Riedel, and nothing else. By the term 'pecuniary loss', as applied to Allison Lynn Riedel, you may take into consideration the loss of nurture, if any, care, if any, maintenance and support, if any, counsel, if any, intellectual, moral and physical training, if any, and education, if any, and pecuniary contribution she would have, in reasonable probability, received from her deceased father from the date of his death to the date of trial, and in the future.

In determining the amounts, if any, you may consider the earnings of the said Albert Riedel, his age, and the condition of his health.

Answer by stating the amount, if any, in dollars and cents.

ANSWER: $78,000.00.'

The issue, instruction and answer relative to the pecuniary loss of Mrs. Riedel were as follows:

'SPECIAL ISSUE NO. 17:

What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Plaintiff Patsy H. Riedel for the loss sustained by her as the result of the death of Albert Riedel?

In answering this issue, you are instructed that you may take into consideration only the pecuniary loss, if any, sustained by Patsy Riedel. By the term 'pecuniary loss' as applied to the wife, is meant maintenance and support, if any, from his earnings, if any, loss of contributions, if any, care, advice and counsel, if any, that the Plaintiff Patsy Riedel would have, in reasonable probability, received from the date of Albert Riedel's death to the date of trial and in the future, if any, from Albert Riedel had he lived.

In determining the amounts, if any, you may consider the earnings of the said Albert Riedel, his age and the condition of his health.

Answer by stating the amount, if any, in dollars and cents.

ANSWER: $50,000.00.'

The court rendered judgment on said verdict in favor of Mrs. Riedel and the children for the amounts so found, plus $1780.00 funeral expenses, aggregating $260,780.00. Mr. Allen has appealed.

Appellant's first two points are that the court committed reversible error in excluding (1) evidence of the marital troubles of

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Doctor and Mrs. Riedel and (2) evidence relative to Dr. Riedel's character and morals. Such excluded testimony, tersely stated, was as follows:

(a) testimony by Mr. Allen that Dr. Riedel told him that his wife was unfaithful; that she didn't love him; that he 'couldn't make a go' of their marriage and that he came home early one day and found a naked doctor with his wife while she was wearing a red robe;

(b) testimony by Dr. Long, Mrs. Riedel's treating psychiatrist, that she told him that she and Dr. Riedel had accused each other of 'running around' with members of the opposite sex;

(c) testimony of Dr. Long that Mrs. Riedel told him her husband had accused her of infidelity with more than one man;

(d) testimony by Dr. Riedel's treating psychiatrist, Dr. DeBolt, that Dr. Riedel told him he was involved with a young woman and concerned that it might lead to something sexual, with which subject he had experience;

(e) testimony of Dr. DeBolt that Dr. Riedel stated to him that he had found out that his wife had been unfaithful and of his reaction to that discovery;

(f) testimony by Dr. DeBolt of Dr. Riedel's statements to him that he was having an affair with another woman; that he had accused his wife of infidelity and that he had an increase in his drinking problem;

(g) testimony by Dr. DeBolt of Dr. Riedel's statements to him in 1965 concerning his mental turmoil, divorce and that he was not able to go back to his wife;

(h) testimony by Dr. DeBolt that Dr. Riedel told him of his affairs with other women; his belief that his wife knew about it; about striking his wife and that he contemplated divorce;

(i) testimony by Dr. DeBolt that Dr. Riedel told him that he and his wife had 'traded partners' one night with another couple in a 'necking episode.'

In connection with appellant's contention that exclusion of such evidence was error and that it was reasonably calculated to cause and probably did cause rendition of an improper judgment he points out that the Riedel children, under the court's instructions, were permitted to recover for loss of Dr. Riedel's nurture, education and moral training, as well as loss of contributions, maintenance and support, and that Mrs. Riedel, under the instructions given, was permitted to recover for loss of maintenance and support from the doctor's earnings, loss of contributions and loss of the care, advice and counsel which she probably would have received from Dr. Riedel had he not been killed.

Appellees were permitted to introduce evidence, over appellant's objection that it was hearsay, that Dr. Riedel was posthumously awarded a plaque and citation for promoting a boys' swimming contest, which citation stated his 'tremendous devotion to all the youth of this community and the outstanding contributions--to his fellow man.' Appellees were permitted to introduce evidence that Dr . Riedel was conscientious, affectionate, in love with his wife, active in family affairs; that Mrs. Riedel was in love with him; that they both wanted their marriage to 'work out.' Mrs. Riedel testified that their marriage was a happy, normal one and that their only real problems were (1) Dr. Riedel's drinking and (2) petty arguments over money and she and Dr. Lewis denied that his drinking was a serious problem. Mrs. Riedel further testified to the effect that their marital problems had disappeared with the building of their last house in 1965.

Appellant says the excluded testimony would have tended to show the infidelity and lack of morals of Dr. Riedel as late as the summer and fall before his death in November, 1965; his belief of his wife's infidelity, where and with whom; their mutual suspicions of infidelity; that Dr. Riedel had

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struck his wife; that Riedel's mind was in a turmoil in the fall of 1965; that he then said he could not go back to his wife; their improper involvement with others, but, chiefly, that it would have shown the principal cause of the Riedels' marital troubles and the extent thereof and demonstrated the likelihood of immediate divorce and termination of his support of Mrs. Riedel. The excluded evidence would have strongly bolstered Dr. Riedel's admitted statement that he was going to divorce his wife. It is appellant's contention that the Riedels' marriage was on the rocks when he was killed. The excluded evidence was highly persuasive of that conclusion and it was reasonably calculated to cause the jury to reduce its findings of the value of what Mrs. Riedel and the children lost as a result of Dr. Riedel's death. Among other things, it was calculated to cause the jury to conclude, contrary to what it evidently believed, that if Dr. Riedel had not been killed he would have soon divorced his wife and stopped supporting her and contributing to her. It was reasonably calculated to cause and probably would have caused the jury to find that her loss was much less than the $50,000.00 it found to be Mrs. Riedel's pecuniary loss. Here, it might be remembered that the record shows that several jurors, even without the benefit of the excluded...