Borak v. Bridge

• Decision Date: 29 May 1975
• Docket Number: No. 908,908
• Citation: 524 S.W.2d 773
• Parties: Larry Joel BORAK, Appellant, v. Mr. and Mrs. Robert BRIDGE, Appellees.
• Court: Texas Court of Appeals

Page 773

524 S.W.2d 773

Larry Joel BORAK, Appellant, v. Mr. and Mrs. Robert BRIDGE, Appellees.

No. 908.

Court of Civil Appeals of Texas,

Corpus Christi.

May 29, 1975.

Rehearing Denied June 26, 1975.

James A. Smith, Allison, Maddin, White & Brin, Inc., Port Lavaca, for appellant.

Terry L. Scarborough, Gibbins & Spivey, Austin, for appellees.

OPINION

YOUNG, Justice.

In this wrongful death action, Mr. and Mrs. Robert B. Bridge sued Larry J. Borak because of an automobile-pedestrian collision which resulted in the death of their 21-year-old son, Terry Bridge, on March 31, 1973. The case was tried to a jury which found, in response to special issues, several acts of negligence of Borak that proximately caused the collision. The trial court entered judgment for $26,954.00 in favor of the plaintiffs on the jury verdict. Defendant-Borak appeals.

On the evening of March 31, Terry with four friends drove from Refugio to Sun Valley, a dance hall near Victoria, Texas. They left Sun Valley about midnight proceeding toward Victoria on a state highway when a flat developed on the left rear wheel of their automobile. Terry was driving at the time. He stopped the car on an improved shoulder of the two lane highway near the traveled portion of the highway. While changing the tire, Terry and one of his friends were struck by a pickup truck driven by Borak. Terry never regained consciousness and was dead on arrival at the hospital .

Larry Borak had gone to work that day as usual as a welder in Wharton, Texas. He had started to drink beer that afternoon and was legally intoxicated at the time of the accident. Larry had left the dance a few minutes after Terry and was traveling the same direction on the highway as Terry had. Soon thereafter he struck and killed Terry with his right front fender at about the headlight on his side of the road.

Terry Bridge was a student at Texas Tech, on the spring break, when he was killed. He was single, had never been married, had no children, and was survived by only his mother and father, Mr. and Mrs. Robert B. Bridge. They brought this action for damages as a result of Terry's death.

In his nine points of error, appellant's attack on the judgment is addressed primarily to five alleged defects. Appellant contends that 'advice and counsel' are not proper elements of damage in a wrongful death action; that the testimony of Dave Peyton regarding future earning capacity of a banker, as related to Terry Bridge, was inadmissible; that the court erred in admitting portions of a college theme, allegedly written by Terry, into evidence; that the jury award of $25,000 for pecuniary loss was excessive, not supported by any evidence, and motivated by bias and prejudice of the jury; finally, that the jury finding that Terry was not negligent in being on the traveled portion of the highway is contrary to the overwhelming weight and preponderance of the evidence.

By his first three points of error, appellant complains that the trial court erred in the following respects:

1. In allowing appellees' attorney to argue to the jury that they could consider the value of advice and counseling to be given by Terry to appellees.

2. In failing to instruct the jury that they could not consider the value of advice and counseling to be given by Terry.

3. In failing to grant appellant's motion for mistrial made in connection with appellees' closing argument that the jury could consider advice and counseling to be given by Terry.

These points of error raise one issue: Is appellees' loss of advice and counsel from their adult son a compensable loss? We hold that such loss is compensable.

The measure of damages in an action by a parent for the death of an adult child is the pecuniary loss actually sustained by the parent. Peek v. Parker, 210 S.W.2d 619 (Tex.Civ.App.--Fort Worth 1948, no writ); Dixon v. Samartino, 163 S.W.2d 739 (Tex.Civ.App.--Galveston 1942, writ ref'd w.o.m.).

' Pecuniary benefits' encompass those benefits, including money, that can be reasonably estimated in money, such as labor, services, kindness and attention of a child to its parents. Houston Electric Company v. Flattery, 217 S.W.2d 950 (Tex.Civ.App.--Galveston 1919, no writ). In Rideaux v. Lykes Bros. Steamship Company, Inc., 285 F.Supp. 153 (S.D.Texas--Houston Div. 1968), the court noted that pecuniary benefits included advice and counsel that a widow might receive from her husband. Although Flattery involves the death of a minor child, and Rideaux the death of a husband, we note that Vernon's Tex.Rev.Civ.Stat.Ann. art. 4677 (1940) makes no distinction about the character or the value of services rendered by the deceased based on his age or relationship to the plaintiff. Rio Grande, El Paso & Santa Fe R. Co. v. Dupree, 56 S.W.2d 900 (Tex.Civ.App.--El Paso 1933, writ dism'd). In fact, this court has previously noted that parents may recover for loss of pecuniary benefits on account of their adult child's '. . . labor and his service and attention in ministering to the wants and necessities of (his) parents.' Montoya v. Nueces Vacuum Service, Inc., 471 S.W.2d 110 (Tex.Civ.App.--Corpus Christi 1971, writ ref'd n.r.e.).

Clearly, advice and counsel which might have been given appellees by their son in areas of business decisions, family financial decisions, and personal dilemmas which they might encounter, have monetary value. Much of appellant's argument under his first three points is directed to the quantity of evidence which tends to show whether or not Terry Bridge would have given advice and counsel to his parents had he lived. This argument is not material to the issues raised by these points. Appellant's first three points of error are overruled.

By his fourth point, appellant complains that the trial court erred in admitting the testimony of Mr. Dave Peyton concerning the potential earnings of a person employed as a beginning banker and earnings in advancements above that beginning position.

With one exception, the cases cited by appellant and appellees are not factually in point. Bonnet v. Galveston, H. & S.A. Ry. Co., 33 S.W. 334 (Tex.Sup.1895), cited by appellant, deals with a father's suit to recover damages for the death of his adult son. The evidence revealed that the deceased, just before his death, was preparing himself to become a machinist and engineer. The trial court excluded evidence about the wages that machinists and engineers ordinarily receive for their services. The Supreme Court held that the probability of the decedent's becoming an engineer or machinist was too remote, contingent, and speculative to throw any light upon his probable future earnings. In Bonnet, the extent of the decedent's preparation to become a machinist or engineer is not stated.

In the case before this Court, the uncontradicted evidence is that Terry, although still interested in journalism, wanted to major in business. He wanted to go into banking and was studying business in his third year at Texas Tech; he was seeking a degree in business. He had spoken of plans to get a part time summer job at a bank in Dallas. This evidence tended to show that Terry would pursue a banking career. In light of this evidence, testimony regarding the probable earnings which he could have anticipated, had he lived was relevant. The law does not furnish a precise test for relevancy. The question must be determined on a case by case basis in relation to all the attendant circumstances. Thompson v. Texas Electric Ry. Co., 155 S.W.2d 624 (Tex.Civ.App.--Waco 1941, writ ref'd w.o.m.). The testimony of which appellant complains tends to illuminate the issue of damages due to appellees' loss of future support from their son. Such damages are in issue in this case. Because it bears on the issue of damages, this testimony by Mr. Peyton is relevant. Thompson v. Texas Electric Ry. Co., supra; Lange Cable Tool Drilling Co. v. Barnett Petroleum Corporation, 142 S.W.2d 833 (Tex.Civ.App.--Galveston 1940, no writ); Pound v. Popular Dry Goods Co., 139 S.W.2d 341 (Tex.Civ.App.--El Paso 1940, no writ).

Appellant's complaint that Mr. Peyton's testimony was founded upon facts not in evidence is without merit. It has been held that evidence of salary increases due to prospective promotions is proper for the jury to consider. See St. Louis Southwestern Ry. Co. of Texas v. Bounds, 283 S.W. 273 (Tex.Civ.App.--Texarkana 1926, writ dism'd); Schaff v. Ridlehuber, 261 S.W. 523 (Tex.Civ.App.--1923, writ dism'd); Lancaster v. Allen, 231 S.W. 148 (Tex.Civ.App.--Texarkana 1921, writ ref'd); Hines v. Walker, 225 S.W. 837 (Tex.Civ.App.--Fort Worth 1920, writ ref'd). Appellant's fourth point of error is overruled.

By his fifth point, appellant contends that the trial court erred in admitting portions of plaintiff's exhibit #2, a college theme, into evidence. The portions admitted into evidence reflect the religious or philosophical background of Terry Bridge. The document indicates that Terry Bridge derived many of his beliefs from his parents; he respected manual labor, yet he preferred a job 'where I would not have to work as hard as my dad, yet make a good living.'

Appellant objected to the admission of those portions of that document into evidence on the grounds that the theme, being a copy, was improperly authenticated; that the statements in the document were hearsay; and that the statements in the document were not material to any issues in controversy.

Generally, a writing, in and of itself, is not evidence. It must be accompanied by proof of some type to show that it is genuine and was executed by the party charged with its execution. Morris v. Ratliff, 291 S.W.2d 418 (Tex.Civ.App.--Dallas 1956, writ ref'd n.r.e.); Bliss v. City of Fort Worth, 288 S.W.2d 558 (Tex.Civ.App.--Fort Worth 1956, writ ref'd n.r.e.); Hinrichs v. Texas & N.O.R. Co., 153 S.W.2d 859 (Tex.Civ.App.--Fort Worth 1941, writ ref'd w.o.m.). Proof of execution may be circumstantial. Abeel v. Weil, 115 Tex. 490...