Houston & T. C. R. Co. v. Gant

• Decision Date: 31 March 1915
• Docket Number: (No. 5461.)
• Parties: HOUSTON & T. C. R. CO. v. GANT et ux.
• Court: Texas Court of Appeals

175 S.W. 745

HOUSTON & T. C. R. CO. v. GANT et ux.

(No. 5461.)

Court of Civil Appeals of Texas. Austin.

March 31, 1915.

Appeal from District Court, McLennan County; Tom L. McCullough, Judge.

Action by William M. Gant and wife against the Houston & Texas Central Railroad Company, Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Baker, Botts, Parker & Garwood, of Houston, and Stribling & Stribling, of Waco, for appellant. James P. Alexander, of Waco, for appellees.

KEY, C. J.

Wm. M. Gant and his wife recovered a judgment against the Houston & Texas Central Railroad Company, for damages on account of the death of their infant daughter; and the railroad company has appealed.

We sustain the second assignment of error, which complains of the court's charge upon the measure of damages, which charge reads as follows:

"If you find for the plaintiffs, you will find for them such sum of money as, if all now paid at one time, you may believe from the evidence to be the pecuniary value at this time to the plaintiffs of the services of their deceased daughter, Mary Gant, from the time of her death until she would have arrived at the age of 21 years, after deducting therefrom the cost and expense of her maintenance for the same period of time. In estimating the value of her services, you may look to the habits and energies, the age and intelligence, and the disposition of the deceased child; and in estimating the cost of her maintenance you may take into consideration the probable cost of her food, clothing, and all such other expenses as her parents would probably have incurred on her account during the period of her minority. And, if you find for plaintiffs, you may find such other sum as the evidence may show would, if all paid now, be equal to the pecuniary benefit that plaintiffs had a reasonable expectation of receiving from their said daughter, from the amount, if any, they had after she reached the age of 21 years, had she not died."

The bill of exception shows that appellant presented timely written objections to the court's charge, one of which complained of that portion of it quoted above as being upon the weight of evidence, and because it "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 said child, 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." We have a statute which prescribes that, in charging a jury, the judge shall not comment upon the weight of testimony; and, in construing that statute, our Supreme Court has held that it is reversible error for a presiding judge, either directly or indirectly, either by express statement or by implication, to convey to the jury his opinion as to the weight of material testimony, except in cases where the evidence is so clear and undisputed as to justify a peremptory instruction to find a verdict for one of the litigants. It is contended by appellant that the charge in question falls under the condemnation of the decisions referred to, because of the fact that it assumed that, if the child had not died on the occasion in question, it would have lived to the age of 21 years. If the charge is subject to that criticism, still, as the objection that was presented to the court was general and did not specify the particular portion of the charge alleged to be upon the weight of testimony, we would not hold that the case should be reversed for that reason; but the other objection was specific, and, in our opinion, it should have been sustained and the charge corrected in that respect, In Railway Co. v. McVey, 99 Tex. 28, 87 S. W. 328, in construing a charge similar in principle, our Supreme Court held that, on account of certain omissions, it was misleading and contained affirmative error; and we copy from that opinion as follows:

"The charge under consideration is as follows: `If you find from the evidence and under the charges of the court for the plaintiffs, you will assess their recovery of damages at such amount, if paid now, as to fully compensate them for the actual damages, if any, sustained by them, as shown by the evidence, and such as is fairly proportioned to the injury sustained, if any; but you will not allow the plaintiffs anything by way of solace for the death of said Edward McVey, or for any sorrow or anguish suffered by them as a result of such death.' 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 received 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. 1895, 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 Tex. 172, 50 Am. Rep. 519. 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 R. R. Co. v. Sciacca, 80 Tex. 350, 16 S. W. 31), nor the loss of his or her society (T. B. & H. R. R. Co. v. Warner, 84 Tex. 122, 19 S. W. 449, 20 S. W. 823), are recoverable in such cases. Now, we think it apparent that in the absence of some instructions, 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. In the case of Galveston, Harrisburg & San Antonio Ry. Co. v. Worthy, 87 Tex. 459, 29 S. W. 376, the trial court charged the jury upon the measure of damages 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,' etc. This charge was held to be erroneous, not for the reason that it directly announced any incorrect proposition of law, but because it did not go further, and instruct the jury that it was only pecuniary damages which could be allowed; that is to say, as we understand, only compensation for pecuniary loss, or the loss of...