Fordyce v. McCants

• Decision Date: 30 January 1892
• Citation: 18 S.W. 371,55 Ark. 384
• Parties: FORDYCE v. MCCANTS
• Court: Arkansas Supreme Court

18 S.W. 371

55 Ark. 384

FORDYCE v. MCCANTS

Supreme Court of Arkansas

January 30, 1892

APPEAL from Phillips Circuit Court, MATTHEW T. SANDERS, Judge.

R. Lee Connor, while a passenger on a train of the Texas & St. Louis Railway Company, operated by Fordyce as receiver, was killed in an accident occasioned by negligence of the railway operatives. He was an unmarried adult, and left his father as his sole heir at law. This suit was brought by McCants, as administrator, for the benefit of the father. The only error assigned on appeal is that the verdict in favor of the plaintiff for $ 2391.50 was excessive. The evidence is stated in the opinion.

Judgment affirmed.

J. C Hawthorne and Sam H. West for appellant.

To entitle plaintiff to recover, it was incumbent on him to show "that deceased gave assistance to his father contributed money to his support, or that the father had a reasonable expectation of pecuniary benefit from the continued life of the son, the reasonable character of this expectation to appear from the facts in proof." 51 Ark 509. The proof in this case is not sufficient to bring plaintiff within the rule. See Patterson's Ry. Ac. Law, p. 482, sec. 400; 43 Ill. 338; 75 id., 468; 51 Wis. 599; 21 A. & E. R. Cas., 418. The burden was on plaintiff to prove a reasonable expectation of such pecuniary benefit from the continued life of the child. Patterson's Ry. Ac. Law, p. 490, sec. 404; 55 Pa. 499; Pierce on Railroads (ed. 1881), p. 399; 32 Minn. 518; 28 id., 103. See also 27 N.W. 305; 83 Ill. 204; 15 N.Y. 432.

Annuity tables are competent evidence. 118 U.S. 545; L. R. 8 Ex., 221; 26 A. & E. R. Cas., 480. The verdict is excessive and entirely unsupported by evidence. The fact that the father did not testify is at least significant, and raises a strong presumption that his testimony would not have been favorable to plaintiff's claim.

Palmer & Nicholls for appellee.

The verdict is not excessive and is sustained by the evidence. The verdict does not shock the sense of justice, and ought not to be disturbed. 15 Ark. 413; 18 id., 598; 26 id., 360.

OPINION

COCKRILL, C. J.

This is a continuation of the case reported under the same style in 51 Ark. 509. The second trial resulted in a judgment for $ 2391.50, which was recovered by the appellee for the benefit of the father of the deceased as his next of kin. The appellant's only contention is that the judgment is excessive.

The evidence tended to show that the father was poor and dependent upon relatives for support; that his son, on account of whose death the action was prosecuted, had been from home about two years and during that time had sent to his father and mother all of his earnings above his living and incidental expenses. He first received $ 25 and afterward $ 35 a month, together with his board, as a salesman in a general merchandise business. His employer, who is the appellee, McCants, testified that his services were all the while increasing in value, and that the expenses which he paid out of the money he received were only about $ 125 a year. The mortuary tables put in evidence at the trial tended to show that the father's expectancy of life at the time of the son's death was about seventeen years.

As the father was poor and dependent, the probability was great that he would require the assistance of his son. In connection therefore with testimony that the son was already in the habit of aiding him, the jury were justified in drawing the conclusion that he would continue to do so. 2 Sedg., Dam., sec. 580; Cooley on Torts, 272.

The amount awarded by them is not beyond reason, upon the evidence adduced; the verdict is not therefore to be disturbed.

But it is argued that the testimony as to aid to the father is of a character which does not carry conviction and should not be regarded. Our answer must be that the jury was the judge of that fact. The testimony in question was...