Francis v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 30 June 1923
• Docket Number: (No. 3616.)
• Citation: 253 S.W. 819
• Parties: FRANCIS v. ATCHISON, T. & S. F. RY. CO. et al.
• Court: Texas Supreme Court

253 S.W. 819

FRANCIS v. ATCHISON, T. & S. F. RY. CO. et al.

(No. 3616.)

Supreme Court of Texas.

June 30, 1923.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by J. H. Francis, administrator of the Estate of Porter Francis, deceased, against the Atchison, Topeka & Santa Fé Railway Company and others. A judgment for plaintiff was reversed on appeal of defendant railroad company to the Court of Appeals (227 S. W. 342), and plaintiff brings error. Judgment of the Court of Civil Appeals affirmed.

L. C. Barrett, C. B. Reeder, W. H. Childers, and J. P. Deatherage, all of Amarillo, for plaintiff in error.

Madden, Trulove, Ryburn & Pipkin, of Amarillo, for defendants in error.

PIERSON, J.

For the purposes of this opinion, the following will be a sufficient statement of the case:

This suit was instituted by plaintiff in error, J. H. Francis, as administrator of the estate of Porter Francis, deceased, against defendants in error to recover damages on account of the death of his adult son Porter Francis. Porter Francis at the time of his death was 29 years of age, unmarried, and according to the testimony of plaintiff in error gave to his parents all of his wages ($2.10 or $2.20 per day), except what he spent for clothes. Plaintiff in error alleged that he and his wife were about 55 years of age, had a life expectancy of 21 years, and prayed for damages in the sum of $15,000. The case was tried about two years after the death of Porter Francis, and resulted in a judgment in favor of plaintiff in error in the sum of $12,000.

In their motion for new trial in the district court, defendants in error set up as newly discovered evidence that, about a year after the death of Porter Francis, Jesse Francis, another son of plaintiff in error, had died while in the army in France, carrying a large amount of life insurance in favor of plaintiff in error, and that now plaintiff in error receives approximately $50 per month from the United States government, and will continue to receive such amount; that by reason of that fact the pecuniary condition of plaintiff in error was materially changed, and the amount that plaintiff in error could reasonably expect Porter Francis under the facts of the case to have contributed to his support is affected, and that by reason of that fact the amount of the judgment was grossly excessive. This motion was overruled.

The Court of Civil Appeals reversed and remanded the case to the district court for new trial on several distinct grounds. It held the newly discovered evidence to be material and admissible, and for that and other reasons the judgment for $12,000 to be excessive. It held also that defendants in error had not used diligence in discovering said testimony.

The important question before us, and the only one that we deem it necessary to discuss, is the admissibility of the newly discovered evidence mentioned above. Since we find no error in the action of the Court of Civil Appeals in reversing the case upon other errors assigned, and the case must be remanded, the question of diligence becomes immaterial, as it would not arise upon another trial.

Plaintiff in error insists that the status of the parties at the time of the death of Porter Francis should be accepted and solely looked to in determining the probable amount the deceased, Porter Francis, would have contributed to his father and mother, and upon which the recovery should be based for the death of Porter Francis. He argues that at the death of Porter Francis the status of his earning capacity was fixed; that even though a great change of fortune might have happened to him had he lived, yet, he being dead, nothing further could be shown, and therefore it would be unfair to allow testimony to show a change in the financial condition of his father that has developed since said death and before the trial of the case.

Porter Francis was an adult, and was under no legal duty or obligation to contribute to the support of his father and mother. They had no legal right to his services or wages, as would have been the case during minority, if he had been a minor.

Plaintiff in error then has the right to recover of defendants in error for the wrongful death of his son the present value of such an amount only as he may be able to show the son would probably have contributed to his parents' support had he lived. This at best, can only be imperfectly shown; but, to enable the court and jury to ascertain such amount, plaintiff in error is permitted to show the character of the son, his affection and disposition toward his father and mother, his earning capacity, his probable future earning capacity, etc., also the ages of himself and wife, their state of health, life expectancy, and financial or pecuniary condition and need of such help and contributions from the son.

The defendants in error likewise would be entitled to rebut any of plaintiff in error's proof, and to offer evidence tending to disprove that the parents had any reasonable expectation of receiving aid or contributions from the son, and to offer proof bearing upon the amount of probable contributions.

In this case the trial court properly permitted plaintiff in error to introduce proof of his poor financial condition, his need.

In the case of I. & G. N. R. R. Co. v. Kindred, 57 Tex. 491, testimony of the financial condition and pecuniary need of the parent was held admissible. This court, in an opinion by Associate Justice Stayton, said:

"In an ordinary action by a party injured, to recover damages therefor, the testimony would not have been admissible; but in this case, which is one by a mother to recover damages for the injury which she has sustained in the death of her adult son, it was necessary for her to show a damage of a pecuniary nature; yet such damages are not to be given merely in reference to the loss of a legal right, but may be calculated with reference to the reasonable expectation which the mother had, resulting from her condition and the disposition and ability of her son, during his life, to bestow upon her pecuniary benefit as of right or in obedience to the dictates of filial duty without legal claim. Such testimony as was offered was proper to show this reasonable expectation of pecuniary aid by the mother, but not for the purpose of increasing the damages."

The poverty or need of the parent could not create a liability, nor could it be an element of damage, nor because of it could the loss or damage suffered be increased.

The amount of recovery must be based upon the loss sustained. If it were possible to ascertain the actual or exact amount the son Porter Francis would have contributed to the support of his father and mother had he lived, the present worth of that amount, of course, would be the amount of recovery. That being impossible, in a case of this kind, the deceased being an adult, and the parents having no legal right or demand to the son's earnings or to contributions from him, the amount of loss sustained is to be ascertained from all the circumstances, relations, and conditions of the parties.

In the first place, liability being established, the parent must show that he had a reasonable expectation of receiving aid and contributions from his son had he lived. But the facts and circumstances that bear upon the issue as to whether he had such a reasonable expectation, such as the son's ability and disposition to contribute and the father's need or lack of need of such assistance, would unavoidably have an important bearing upon what amount he had a reasonable expectation of receiving from the son had he lived. The average mind under its judgment and common sense cannot help but give weight to such testimony in arriving at a conclusion on both of these issues. The issues are inseparable, and are really one — the reasonable expectation of receiving aid and its probable amount. As held in the case cited, the poverty of the parent in itself cannot form the basis for damages, nor to increase the damages actually sustained, but it is a circumstance, along with the other facts relating to the relations and conditions of the parties, that has a material bearing upon the reasonable expectation of the parent of receiving aid from his son had he lived, and upon the actual amount such son would probably have contributed.

Thus in this character of cases the testimony is admitted, not for the purpose of increasing or diminishing the actual loss or damage, but as an aid in determining what that loss or damage actually is. This is supported by a quotation in the case of S. A. & A. P. Ry. Co. v. Long, 87 Tex. 148, 27 S. W. 113, 24 L. R. A. 637, 47 Am. St. Rep. 87, a case similar to this one, wherein...