Hines v. Kelley

• Decision Date: 30 June 1923
• Docket Number: (No. 383-3601.)
• Citation: 252 S.W. 1033
• Parties: HINES, Director General, v. KELLEY.
• Court: Texas Supreme Court

252 S.W. 1033

HINES, Director General, v. KELLEY.

(No. 383-3601.)

Commission of Appeals of Texas, Section B.

June 30, 1923.

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

Action by Saletia Kelley against Walker D. Hines, Director General of Railroads. On judgment of the Court of Civil Appeals (226 S. W. 493), affirming a judgment in plaintiff's favor, defendant brings error, for conflict of decisions. Judgments of the district court and Court of Civil Appeals reversed, and cause remanded to district court for new trial.

Baker, Botts, Parker & Garwood, of Houston, and Proctor, Vanderberge, Crain & Mitchell, of Victoria, for plaintiff in error.

Fly & Ragsdale, of Victoria, for defendant in error.

McCLENDON, P. J.

The writ of error in this case, which was granted because of conflict with Railway v. Gant (Tex. Civ. App.) 175 S. W. 746, was sued out upon a judgment of the Court of Civil Appeals, affirming a judgment of the trial court in favor of Saletia Kelley against Walker D. Hines, Director General of Railroads, for $15,000, recovered in an action for compensatory damages for the death of plaintiff's son, Claude Kelley, who was killed in a railroad wreck on the Galveston, Harrisburg & San Antonio railroad, while in the discharge of his duties as locomotive fireman. The case was tried to a jury upon a general charge.

The question upon which the writ was granted relates to the action of the trial court in overruling certain objections to the court's charge upon the measure of damages. That charge was amended by the trial court before its submission to the jury, so as to meet one of the objections urged, but in other respects was submitted as originally drafted. As amended and delivered to the jury, the charge was as follows; the portion added by amendment being in italics:

"If your verdict is in favor of plaintiff, Saletia Kelley, you will assess her damages at such sum as you believe from the evidence will fairly compensate her for her alleged damages, if any, shown by the evidence to have been sustained by her by reason of the negligent injury and death of the said Claude Kelley by the defendant. But in estimating such damages, if any, you will consider her pecuniary loss only."

The objections urged against the charge read:

"First. Because same does not exclude from the consideration of the jury those elements of damages which the jury should not consider, such as grief, loss of society of plaintiff's son, mental pain and anguish, and such other elements as the jury might improperly consider in a case of this sort, other than of a pecuniary nature.

"Second. Because same incorrectly states the measure of damages, in that it does not limit the amount, if any awarded, to such a sum as, if allowed now, would give plaintiff, Saletia Kelley, the compensation which she in law would be entitled to.

"Third. Because said paragraph of the charge does not confine the jury, in its consideration of the elements of damage, to the pecuniary loss, if any, sustained by Saletia Kelley by the death of her son."

It will thus be seen that the third objection was cured by the amendment. The questions now presented are whether defendant was entitled to have the charge amended so as, first, to exclude from the jury's consideration the elements of "grief, loss of society of plaintiff's son, and mental pain and anguish"; and, second, to limit the amount of recovery to such a sum as, "if allowed now," would compensate plaintiff for her loss.

"Our statute, which gives a right of recovery for injuries resulting in death, provides, among other things, 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 of the action, or such of them as shall then be alive, in such shares as the jury shall find by their verdict.' Rev. Stat. art. 3027. There could hardly be a statute more vague in its terms than this. It is, however settled by our decisions that the damages which may be recovered under the statute are such pecuniary benefits as the plaintiff had a reasonable expectation of receiving from the deceased, had he lived. City of Galveston v. Barbour, 62 Texas, 172. By `pecuniary benefits' is meant not only money, but everything that can be valued in money, and includes in case of a minor child who is suing for the death of a parent the reasonable value of such nurture, care, and education as the child would have received from the deceased parent had such parent lived. But neither sorrow for the death of the deceased relative (Houston City St. Ry. Co. v. Sciacca, 80 Texas, 350) nor the loss of his or her society (Taylor, B. & H. R. R. Co. v. Warner, 84 Texas, 122) are recoverable in such cases. Now we think it apparent that, in the absence of some instruction in a charge of this character as to the damages which were to be estimated and as to those which were to be excluded, a jury would be likely to give compensation both for the grief and the loss of society caused by the death." Railway v. McVey, 99 Tex. 28, 87 S. W. 328.

We also quote from Railway v. Farmer, 102 Tex. 235, 115 S. W. 260:

"It is important, therefore, in an action of this sort, that the jury should not only be given instructions to allow a recovery as authorized by the language of the statute, but that they should also be instructed for what elements no recovery can be allowed."

It is contended by defendant in error that the amendment of the charge, which limited the plaintiff's recovery to "her pecuniary loss only," eliminated from the jury's consideration the elements of grief, loss of society, and mental pain and anguish; that the charge as amended was correct, and presented no affirmative error; and that, if plaintiff in error desired to have the stated elements expressly eliminated, it was incumbent upon him to present a special charge upon that subject. In the McVey Case the jury were not charged that the amount recoverable was the pecuniary loss. They were so charged, however, in the Gant Case; but there was there no express limitation to pecuniary loss.

It will be seen from the above quotations from the McVey and Farmer Cases that the Supreme Court has held distinctly that a general charge, couched in the language of the statute, is misleading and affirmatively erroneous, if the elements of grief and loss of society are not expressly excluded from the jury's consideration. The statute does not use the expression "pecuniary loss." In determining what elements are and what elements are not embraced in the statute, the Supreme Court refers to the former as pecuniary losses, and the holding of the Supreme Court, in applying this expression to the elements it is held to embrace, seems to accord with the decisions in other jurisdictions, where recovery is expressly limited by statute to pecuniary loss or damage. Carter v. Railway, 76 N. J. Law, 602, 71 Atl. 253, 19 L. R. A. (N. S.) 128, 16 Ann. Cas. 929. In passing upon the sufficiency of the charge, however, the Supreme Court clearly indicates that the improper elements themselves must be excluded — specifically, and not by some general expression descriptive of those elements, which may not be clearly understood by one unfamiliar with the legal interpretation of that expression. To the trained legal mind there is a marked distinction between loss by a child of its parents' care, nurture, and education, and loss of the parents' society and companionship, from the viewpoint of their pecuniary value, although each may be equally incapable of reduction to a monetary equivalent by any accurate method or certain rule or criterion. The former has a tangible value in fitting the child for the duties and responsibilities of life; while the value of the latter rests more properly in the emotions, sentiments, and feelings. We hardly think that the average juror could be expected, without aid from the court, to give to the expression "pecuniary loss" a meaning which would necessitate, in a proper case, the drawing of such distinction. To one possessed of the common feelings and sentiments of...