Gulf, C. & S. F. R. Co. v. Farmer

• Decision Date: 13 January 1909
• Citation: 115 S.W. 260
• Court: Texas Supreme Court
• Parties: GULF, C. & S. F. R. CO. v. FARMER et al.

Page 260

115 S.W. 260

GULF, C. & S. F. R. CO. v. FARMER et al.

Supreme Court of Texas.

January 13, 1909.

Error from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by C. W. Farmer and another against the Gulf, Colorado & Santa Fé Railroad Company. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (108 S. W. 729), and defendant brings error. Reversed and remanded for new trial.

Terry, Cavin & Mills, Brown & Lomax, and Chas. K. Lee, for plaintiff in error. Walker & Baker, for defendants in error.

GAINES, C. J.

This suit was brought by C. W. Farmer and his daughter, Lota Farmer, to recover of the defendant company damages for injuries inflicted upon Mrs. Frankie M. Farmer, who was the wife of C. W. Farmer and mother of Lota Farmer, by the negligence of the defendant company, which injuries are alleged to have resulted in the death of said Frankie M. Farmer. It appears from the evidence that Mrs. Farmer had undergone an operation in Ft. Worth for sarcoma, and was on her return home at Cleburne, Tex., on the railroad of the defendant company, and upon their arrival at Cleburne, as she was about to alight, the train upon which she was riding was struck by another train of the company and violently shocked, and that she was thrown out of her seat and injured; that the injuries so inflicted resulted in her death. Whether her death resulted from the cause as assigned or not was the question which was vigorously contested in the case, and was about the only question involved.

The first assignment of error complains of the paragraph of the general charge of the court, in which the jury are instructed, in effect, that if she was injured by the collision of the trains, plaintiffs would be entitled to recover a judgment, and omitted to instruct the jury that the injury must have resulted in the death before they could return a verdict in favor of plaintiffs. This was clearly error, and if it stood alone would require a reversal of the judgment, but in other portions of the charge the jury are instructed that they could not give a verdict in favor of plaintiffs unless they found that her death had resulted from the cause assigned in the petition. It is very clear, therefore, taking the whole charge together, that there is nothing in it from which the jury could have been misled. Consequently we think the assignment shows no reversible error.

The same may be said as to the second and third specifications of error assigned in this court.

The fourth specification of error complains that the trial court erred in refusing to give defendant's special charge No. 4a, in which the jury are distinctly told that they could not find for plaintiffs unless they found that the injuries to Mrs. Farmer resulted in her death. We think the court was not in error in refusing this charge, for the reason we think that it was substantially given in the general charge.

We find no error in the charge of the court complained of in the fifth specification. We think the court did not err in refusing special charge No. 10, for the reason that we think it was sufficiently given in the general charge.

The seventh specification of error is as follows: "The court erred in refusing to give defendant's special charge No. 6 as submitted, as follows: `If you should find for the plaintiff in this case under other instructions, then on the question of damages you are instructed that in no event, and under no circumstances, can you allow either the plaintiffs Mr. Farmer or his daughter anything by reason of the loss of society, love, affection, or comfort of Mrs. Farmer as wife and mother, respectively, nor anything on account of any suffering of any character that she may have endured while alive, or any mental distress of herself while alive, or any mental suffering, sorrow, or distress of mind that plaintiffs, or either of them, may have suffered by reason of her death, and in determining your verdict, you will carefully exclude all such considerations from your verdict.' And erred in giving in lieu thereof modified instructions as follows: `You are further instructed that the court modifies defendant's special charge No. 6 and gives it to you as follows: "If you should find for the plaintiffs under the other instructions hereinbefore given you, then on the question of damages you are instructed that in no event can you allow either of the plaintiffs anything by reason of the loss of society, love, affection, or comfort of Mrs. Farmer to the plaintiffs as a wife and mother, respectively, or suffering of any character that Mrs. Farmer may have endured while alive, or any mental distress that she may have suffered, or physical pain that she may have suffered, while she was sick, but the measure of damages are given you in paragraph 8 of the charge."'" It will be noted that in the modified charge given by the court the words "or any mental suffering, sorrow, or distress of mind that plaintiffs, or either of them, may have suffered by reason of her death" were omitted, and the question is whether that was error. The statutes provides that: "The jury may give such damages as they may think proportioned to the injury resulting from such death; and the amount so recovered shall be divided among the persons entitled to the benefit to the action, or such of them as shall then be alive, in such shares as the jury shall find by their verdict." Article 3027, Rev. St. 1895. This article has been often construed by this court, and it is held that compensation should be allowed only for such pecuniary loss as may have resulted to the plaintiff by the death of the deceased, and excludes all recovery for loss of society, or companionship of the...