Finck Cigar Co. v. Campbell

Decision Date04 February 1938
Docket NumberNo. 13662.,13662.
Citation114 S.W.2d 348
PartiesFINCK CIGAR CO. v. CAMPBELL.
CourtTexas Court of Appeals

Appeal from District Court, Clay County; Vincent Stine, Judge.

Action by S. L. Campbell against the Finck Cigar Company for damages growing out of an automobile collision. Judgment for plaintiff, and the defendant appeals.

Affirmed.

Touchstone, Wight, Gormley & Price, of Dallas, for appellant.

Ray Bland, T. R. Boone, and Kilgore & Rogers, all of Wichita Falls, for appellee.

SPEER, Justice.

S. L. Campbell sued Finck Cigar Company, a corporation, in the district court of Clay county for damages growing out of an automobile collision between plaintiff's car and that of defendant's, driven by C. B. Sikes, alleged to be the agent of defendant, and that said agent was in the discharge of his duties as such at the time of the accident.

A trial before a jury was had, and plaintiff recovered judgment, from which the defendant has appealed.

For the purpose of discussing the errors assigned by appellant, a sufficient statement of the pleadings is: That allegations were made that at the time complained of, appellee, accompanied by his wife, was driving along a public highway in said county, in a lawful manner, at a moderate and legal rate of speed, and keeping on his right-hand side of the road; that appellant, acting by and through its said agent, was likewise driving the automobile of appellant along said highway in an opposite direction, at an unlawful and negligent rate, that is, faster than forty-five miles per hour, and that immediately prior to the time of the collision, suddenly drove his car onto his left-hand side of the road, immediately in the path of that of appellee; that because of said negligent acts, appellee's car was struck, demolishing it, killing his wife and seriously injuring the appellee; that appellee was 59 years of age and was earning a weekly wage of $45, and at that time was in sound health and had a life expectancy of approximately fifteen years; that his wife was 56 years of age, in sound health, and performed all the duties incumbent upon her as a wife to appellee. Allegations were made of damages sustained by reason of Mrs. Campbell's death, his own injuries, hospital and doctor bills, and the value of the car.

Appellant answered with general denial, and special pleas of contributory negligence by appellee, and that appellee was not in sound health, of such a nature as would shorten his natural life expectancy. The two allegations of contributory negligence discussed by appellant in its brief were to the effect that appellee failed to sound his horn and failed to lessen the speed of his car, as he should have done immediately prior to the accident.

The case was submitted to the jury on special issues; all being answered favorable to appellee, judgment was entered by the court.

This appeal is based upon six points or propositions germane to as many assignments of error.

Appellant's first and second assignments challenge the findings of the jury in assessing damages for the death of Mrs. Campbell at $10,000 (a) because the testimony was insufficient to support a judgment for any amount, and (b) because the amount found was highly excessive.

The record indicates that appellee had proven that he had been married to his wife 31 years, and that she attended to her household duties; kept the home, did her own housework, and was in the act of going further in the testimony when it was admitted by appellant's counsel in open court, and made a stipulation in the testimony, as follows: "We will admit she was a dutiful wife and did all any wife should do and what any wife was supposed to be to any man."

We think the stipulation covered about all that could have been shown had appellee been left to make his proof on the point. There were no allegations of Mrs. Campbell's ability to earn money in any other special capacity, than as a housewife; hence, the agreement covered every phase of her earning capacity as such. We see no merit in the assignment raising the lack of testimony to support the verdict.

Subdivision (b) above complains of the amount as excessive and requiring a remittitur of at least half. One would be at a loss to attempt to fix an amount in dollars and cents, with any degree of accuracy, as to a loss sustained by a husband or wife in the death of the other spouse. At most it would resolve itself into a matter of personal opinion, differing, perhaps, as often as there are persons estimating it. We cannot content ourselves to think in sordid terms of the amount necessarily required by the survivor to hire done the domestic labors performed by a housewife. Nor indeed is this the test; she is not a domestic, and while as in this case she performs those menial services, she is far more than that; she is an equal partner with her husband in the marital relation; her labors in behalf of the union are not reckoned by the employer of the husband, and the latter receives the pay check, yet she has an equal interest with him in it. The law says she has earned it. Under the facts in this case, Mrs. Campbell was as good as the best; she was all to her husband that any dutiful wife was supposed to be to any man. In addition to cooking, washing dishes, and mending his clothes, she was his helpmeet, his inspiration in his life's work. Words are too feeble to encompass the magnitude of the subject. Some one has said, "There are more wife made men than self made ones." We cannot take as a standard one who may have been a financial detriment to the partnership, nor be governed by the fanciful figures set by those who claim to have lost the love of a spouse to the flaunted alluring charms of another, but a jury may, under a given state of facts, estimate the husband's losses, as well as any one else. In 33 Tex.Jur. p. 145, § 98, it is said: "Nor need the value of the wife's services be shown by specific proof with any mathematical accuracy, or in dollars and cents. `Services', when applied to the functions of a wife, are not measured by any fixed or conventional standard of value; their value may be ascertained by a jury from their common knowledge based upon the `aid, assistance, comfort, and society the wife would be expected to render to or bestow upon her husband.'"

In Galveston, H. & W. Ry. Co. v. Lacy, 86 Tex. 244, 24 S.W. 269, 272, it was held that the term "service" by a wife did not fairly represent the dignity of the relation she occupied in the marital copartnership. In this connection, speaking for the Supreme Court, Judge Brown said: "The wife's labor, while equally valuable to the community, does not command a price in the market, and therefore cannot be proved by experts, as can that of the husband." Other authorities could be cited, but the question does not admit of debate.

The jury's verdict allowed appellee the amount named as damages in the loss of his wife. We see nothing in the record to indicate that any improper motive prompted them to estimate the amount at these figures. In the absence of anything to the contrary, it will be presumed that the jury arrived at this amount from honest deductions made by them from the testimony. D. & H. Truck Line v. Lavallee, Tex.Civ.App., 7 S.W.2d 661, writ refused; Schaff v. Young, Tex.Civ.App., 264 S.W. 582, writ refused; Lambert v. Lancaster, Tex.Civ.App., 259 S.W. 270, writ dismissed. Appellee cites many cases in which verdicts far in excess of this one have been sustained against the contention of excessiveness; conditions in many of them were different to those under consideration here, but they tend to show there is no fixed price established by law for the negligent death of a husband or wife. The trial court refused to grant a new trial upon the grounds complained of, and we see no abuse of discretion in his doing so. We must overrule the assignment.

Appellant's third proposition is to the effect that in the issues inquiring as to the amount of damages sustained by appellant, they were so worded as to inform the jury what the effect of their answers to preceding issues would be. After proper definitions were given of ordinary care, negligence, unavoidable accident, proximate cause, and new and independent cause, the first 14 issues submitted the various alleged acts of negligence by appellant upon which testimony was offered, along with each as a proximate cause. Issues 15 to 34 likewise submitted alleged acts of contributory negligence of appellee. In issue No. 35 was submitted the question of appellee's damages; the items being designated separately. The issue reads:

"Special Issue No. 35. Find from a preponderance of the evidence what amount of money, if any, if paid now in cash, would reasonably and fairly compensate the plaintiff, S. L. Campbell, for the injuries and damages sustained by him, if any, as directly and proximately caused by the negligence, if any, of the driver of the defendant's automobile in question. In answering you may take into consideration only such elements of damage, if any, as hereinafter enumerated, and consider no more.

"a—Loss of earnings of the plaintiff, S. L. Campbell, if any, which he sustained in the past as a direct and proximate result of such negligence, if any.

"b—(A similar inquiry was made as to future losses, if any, appellee will sustain.)

"c—Such physical pain and suffering, if any, that said plaintiff, S. L. Campbell, has suffered in the past as the direct and proximate result of the injury, if any, on May 23, 1936.

"e—(Inquired in the language of `c' above as to doctors bills.)

"g—The loss to plaintiff of the pecuniary value, if any, of his deceased wife's services, to him, had she lived.

"h—(In similar language to `g' above, inquiry was made as to the amount of necessary hospital bills proximately resulting from the injuries, if any.)"

Appellant's complaint is that by the expression in the charge, ...

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