Galveston, H. & S. A. Ry. Co. v. Worthy

• Decision Date: 28 March 1894
• Citation: 27 S.W. 426
• Parties: GALVESTON, H. & S. A. RY. CO. v. WORTHY et al.
• Court: Texas Court of Appeals

27 S.W. 426

GALVESTON, H. & S. A. RY. CO. v. WORTHY et al.

Court of Civil Appeals of Texas.

March 28, 1894.

Appeal from district court, Bexar county; G. H. Noonan, Judge.

Action by C. A. Worthy, wife of H. C. Worthy, deceased, and others, against the Galveston, Harrisburg & San Antonio Railway Company for damages for killing H. C. Worthy. Judgment for plaintiffs. Defendant appeals. Affirmed.

Upson & Bergstrom, for appellant. Denman & Franklin, for appellees.

FLY, J.

This appeal is from a judgment for $12,500 recovered by appellees on account of the negligent killing of their husband and father by the employés of appellant. We consider the assignments of error in their order.

Negligence upon the part of the employés of the railway company in placing the flat car on the track, a collision with which caused the death of the husband and father of appellees, being admitted, it was proper for the court to assume negligence on their part in charging the jury. This admission of negligence being made, if the negligent employés were not the fellow servants of deceased, there was but one question to be determined by the jury, and that was the amount of damages to which appellees were entitled. Under the act of March 10, 1891, the deceased and the negligent engineer and brakeman were not "working together, at the same time and place to a common purpose." They were at no time on the day of the death closer to each other than 20 miles; the one being in charge of one train, the other of another,—the one running a gravel train, the other a local freight train. It is unnecessary for this court to enter into a general discussion of this question, it being sufficient to say that under the facts of this case the question of fellow servants can have no bearing. It may not be inappropriate to say also that if, under the act of 1891, all employés of the same grade on the whole line owned by a railroad company are fellow servants, we are unable to see the object and purpose of this law, for it would make no change in the law as it existed before its enactment, except to grade. It will be difficult to formulate any general rule under the statute, and we do not feel called upon to do it, there being no necessity to decide anything except the case as presented to us from the record.

There is only one subject expressed in the title to the act, and, if there are more subjects treated of than the one mentioned in the title, those mentioned would be valid, and those not mentioned invalid. This is clearly provided for in article 3, § 35, of the state constitution, which says: "No bill (except general appropriation bills, which may embrace the various subjects and accounts for an account on which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed." This is too plain for comment. It is clearly expressed in the title to the act of March 10, 1891, that it is "an act to define who are fellow servants and who are not;" and the act cannot be held unconstitutional on the ground that the subject of fellow servants is not fully expressed in the title. We are of the opinion that it was within the constitutional powers of the legislature to declare who are and are not fellow servants, and, whatever may have been the construction placed upon the term "fellow servant" before the passage of the act, there was no interference with the prerogatives of the supreme court in the legislative declaration of what class of employés thereafter should be deemed fellow servants. If this law were intended to be retroactive in its effects, and proposed to give judicial construction to acts already done, it would to that extent be void, but, because a court has at some time or other passed upon a question, we cannot see that the constitution has inhibited legislation on that subject. There had up to March 10, 1891, been no legislative definition of the term "fellow servant," and there was so much uncertainty about it that it became necessary to define it. "To declare what the law is or has been is a judicial power; to declare what the law shall be is legislative." Ogden v. Blackledge, 2 Cranch, 272. We see no desire on the part of the legislature to make the act retroactive. It was passed without the emergency clause, and went into effect 90 days after adjournment, and of course could have no effect except as to matters arising after it had gone into operation. It declares a definition for the future, and is binding only upon actions after it has taken effect. Suth. St. Const. §§ 10 and 11.

The only charge given from which the jury could obtain a rule for the measure of damages upon which they could act in arriving at the amount of damages is as follows: "In case you find for plaintiffs, you may give them such damages as you may think proportioned to the injury resulting to plaintiffs from the death of H. C. Worthy." We are of the opinion that this charge was too vague and indefinite, and opened up too wide a field for speculation on the part of the jury. What the elements of damages are in cases of this character, and what the jury must take into consideration in arriving at a proper compensation for the life of the deceased husband and father, are not given. It is true that the grounds for damages alleged in the petition were the earning capacity of deceased and the probable continuance of his life, but testimony was introduced showing that deceased was a kind and affectionate husband and father, and there was nothing in the charge to prevent the jury from speculating on the probable damage accruing by reason of the loss of his society and tender affection. The right to recover in this case is given solely by reason of the statute which limits the recovery to actual damages. Loss of society cannot be considered in arriving at the true measure of damage. "The damages are purely pecuniary and compensatory. They rest upon considerations such as the value of the services or the advantage in money reasonably to be expected by the survivor if the deceased had lived." McGown v. Railway Co., 85 Tex. 289, 20 S. W. 80; Railway Co. v. Warner, 84 Tex. 122, 19 S. W. 449, and 20 S. W. 823; Abbot v. McCadden (Wis.) 51 N. W. 1079; Moffatt v. Tenney (Colo. Sup.) 30 Pac. 348.

While it is admitted by counsel for appellees that the charge is general, yet it is contended that it is correct so far as it goes, and that if appellant wanted additional charges it should have asked them. We doubt the correctness of the charge even "as far as it goes." We are disposed to doubt the correctness of any charge that permits the jury to find for "such damages as you may think proportioned to the injury," without confining their thoughts to the evidence. There is too much latitude given to them, and unconfined and untrammeled, without rudder or compass, without reference to law or evidence, they are sent forth to speculate in the uncertain field of damages accruing to a widow and children by the death of a loved husband and father. They were given no measure of damages, and their attention was in no way called to the fact that in arriving at a verdict they must be confined to the evidence. It has been held by our supreme court that in all cases of damages the trial court should give definite instructions to the jury as to the measure of damages to which the party may be entitled under the issues and facts of the particular case. Railway Co. v. Le Gierse, 51 Tex. 189; Railway Co. v. Nixon, 52 Tex. 19. In the Nixon Case the charge did confine the jury to actual damages, but even that is not done in this case. For the error in the charge, the judgment is reversed, and the cause remanded.

On Rehearing.

(May 30, 1894.)

We adhere to that portion of our opinion as to fellow servants, but, after a careful reinvestigation of the authorities, we are of the opinion that there is no error in the judgment of the lower court that would require a reversal.

The fourth assignment of error is as follows: "The court erred in giving to the jury the following clause in the charge, viz.: `In case you find for plaintiffs, you may give them such damages as you may think proportioned to the injury resulting to plaintiffs from the...