Hines v. Walker

• Decision Date: 02 July 1920
• Docket Number: (No. 9354.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 225 S.W. 837
• Parties: HINES, Director General of Railroads, v. WALKER.
• Court: Texas Court of Appeals

225 S.W. 837

HINES, Director General of Railroads, v. WALKER.

(No. 9354.)^*

Court of Civil Appeals of Texas. Ft. Worth.

July 2, 1920.

On Motion for Rehearing, November 20, 1920.

Appeal from District Court, Callahan County; Harry Tom King, Judge.

Action by Mrs. Nora Walker, administratrix, against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Shropshire & Bankhead, of Weatherford, for appellant.

Johnson, Edwards & Hughes, of Tyler, and J. R. Black, of Baird, for appellee.

DUNKLIN, J.

The Texas & Pacific Railway Company maintained and operated a spur track about 600 yards long, which connected with its main line near the town of Baird in Callahan county and extended to a sand pit. The surface of the land over which this spur track was constructed consisted of loose sand, and the purpose of that track was to enable the company to haul sand, for use on the main track. In some instances the cross-ties and rails would be laid on a foundation of sand, which later would be excavated and hauled away, and the track relaid on the clay beneath. As the clay was not of uniform depth from the surface, it would sometimes happen that the cross-ties at one end of a rail would rest on a clay foundation, while the other end would rest on sand. At places where the track was supported by a foundation of sand, it was unsafe to run heavy trains over it. On the 25th day of February, 1919, while a train composed of a locomotive and several cars was being operated over the spur track at a slow rate of speed, the rails broke and gave way, in consequence of which the train was wrecked, and H. N. Walker, the fireman, was scalded to death by steam which escaped from the pipe connecting the boiler and engine.

This suit was instituted by Mrs. Nora Walker, surviving wife of the deceased, as administratrix of the estate of her deceased husband, and for the use and benefit of herself as his surviving wife, and his three minor children, aged 3, 6, and 8 years, respectively, for damages sustained by reason of his death. The suit was against Walker D. Hines, Director General of Railroads. It was instituted under the federal Employer's Liability Statute (U. S. Comp. St. §§ 8657-8665), and plaintiff's petition contained allegations sufficient to give that act effect in this suit. Plaintiff recovered a judgment for the sum of $20,000, apportioned as follows:

One-half to plaintiff, as surviving wife of the deceased, and the other half to his three minor children, share and share alike. From that judgment defendant has appealed.

Plaintiff's suit was predicated upon the contention that the accident was caused by a defective and unsafe condition of the spur track, and that the defendant was guilty of negligence in maintaining the track in that condition, which negligence was the proximate cause of the death of H. N. Walker.

The case was submitted to the jury on special issues, in answer to one of which the charge of negligence, made by the plaintiff as the proximate cause of the death of H. N. Walker, was sustained. Another special issue submitted was as follows:

"What amount of money, if paid now, will fairly and reasonably compensate the surviving widow and children of deceased for the pecuniary loss which they respectively suffered by reason of his death? This question you will answer by stating the aggregate amount of such pecuniary loss or damages. By `pecuniary loss' is meant such loss as may be compensated for in money. In answering this, the fifth question, you may take into consideration the contribution of money and other pecuniary benefits, if any, which the evidence may show that said surviving widow and children of deceased would have received from him after the time of his death if he had continued to live; and in estimating the pecuniary losses suffered by the minor children of deceased by reason of his death you may take into consideration such nurture, advice, and training, if any, as the evidence may show that these children would have received from deceased after the time of his death if he had continued to live, but you cannot consider for any purpose the solace or grief or loss of companionship suffered by deceased's surviving widow and children, or either of them, by reason of his death, and you cannot award them, or either of them, any damages by way of solace or comfort for the death of deceased."

Before the charge was submitted to the jury, the defendant duly excepted to the instruction quoted, said objections and exceptions being in writing and filed with the papers of the case. One of the objections so made was that the instruction did not limit the amount of damages to be awarded to the children to losses they would have sustained during minority had not their father been killed. The court overruled that objection, and also refused a requested instruction offered by the defendant, which presented such limitation of damages to be awarded to the children. Error has been assigned to both those rulings.

The undisputed facts show that at the time H. N. Walker met his death he was engaged in the service of handling interstate commerce; hence the federal Employer's Liability Act controls the case. That act prescribes that in such a case the railroad company "shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment." U. S. Comp. St. § 8657. By that statute the recovery by a surviving child of a deceased employee is not expressly limited to the pecuniary benefit which the child may sustain during minority. It is broad enough to permit a recovery for such benefits of a pecuniary value which the child would have reasonable expectation of receiving after he reaches his majority. Articles 4694 and 4698 of the Revised Statutes of Texas, in the same general terms, allow a recovery by the "surviving husband, wife, children and parents" of an employee whose death has resulted from the negligence of a railroad company. But it is a familiar rule of decisions of this state that an adult child will not be allowed to recover for the death of his parent so caused unless it can be shown by evidence that such child had a reasonable expectation of receiving from the parent support or aid of pecuniary value, notwithstanding the fact that at the time of the death of the parent he had reached his majority and such parent was no longer under legal liability to render him such aid. I. & G. N. Ry. Co. v. De Bajligenthy, 9 Tex. Civ. App. 108, 28 S. W. 829; St. L. S. W. Ry. Co. v. Bishop, 14 Tex. Civ. App. 504, 37 S. W. 764; M., K. & T. Ry. Co. v. James, 55 Tex. Civ. App. 588, 120 S. W. 269; T. & N. O. Ry. Co. v. Mills, 143 S. W. 690.

Substantially, the same interpretation of the federal statute was given by the United States Supreme Court in G., C. & S. F. Ry. Co. v. McGinnis, 228 U. S. 173, 33 Sup. Ct. 426, 57 L. Ed. 785. That suit was by a widow for the benefit of herself and four children, one of whom was a married daughter, who was supported by her husband. There was neither allegation nor proof that Mrs. Saunders, the married daughter, was in any way dependent upon her father, nor that she had reasonable expectation of pecuniary benefits as the result of the continuation of his life. In that case, the trial court refused a requested instruction to the jury that no damages could be allowed in favor of Mrs. Saunders, and the Supreme Court reversed the judgment for the refusal to give the requested instruction, notwithstanding the fact that the trial court in general terms, as was done in the present suit, instructed the jury to allow such damages only as the evidence showed the beneficiaries had a reasonable expectation of receiving from the decedent if his death had not occurred.

To the same effect is the case of N. C. & St. L. Ry. Co. v. Anderson, 134 Tenn. 666, 185 S. W. 677, L. R. A. 1918C, 1115, Ann. Cas. 1917D, 902, in which the Supreme Court of Tennessee gave the same construction to the federal statute as our courts have given the statute of this state. In that opinion, the following is quoted with approval from Tiffany on Death by Wrongful Act, § 160:

"The damages to the widow should be calculated upon the basis of their joint lives. The damages to the minor children for the loss of support should be confined to their minority."

And in the course of that opinion several decisions of the Supreme Court of the United States are cited to show that in that court the rule requiring proof of pecuniary damages in such cases is applied with more strictness than in some other courts. In the cases Norfolk & Western Ry. Co. v. Holbrook, 235 U. S. 625, 35 Sup. Ct. 143, 59 L. Ed. 392, and in C. & O. Ry. Co. v. Kelly, 241 U. S. 485, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367, the charges given by the trial courts contained the limitation of the amount of recovery by the minors, which was insisted on by the defendant in this case. The correctness of such instructions in the particular noted was not questioned in either of those decisions. See, also, Richie, Federal Employer's Liability, § 183.

All the authorities seem to proceed upon the theory that a minor may recover in such a case because the parent is under legal obligation to support him during minority, and that he will perform that obligation. But after a child reaches his...