Jasper County Lumber Co. v. McMillan

• Decision Date: 07 June 1945
• Docket Number: No. 4298.,4298.
• Parties: JASPER COUNTY LUMBER CO. OF TEXAS v. McMILLAN.
• Court: Texas Court of Appeals

188 S.W.2d 731

JASPER COUNTY LUMBER CO. OF TEXAS v. McMILLAN.

No. 4298.

Court of Civil Appeals of Texas. Beaumont.

June 7, 1945.

Rehearing Denied July 11, 1945.

Appeal from District Court, Jasper County; F. P. Adams, Judge.

Action by Ezra McMillan against the Jasper County Lumber Company of Texas for death of plaintiff's minor son. From an adverse judgment, defendant appeals.

Affirmed.

Faver & Barnes, of Jasper, and J. Austin Barnes, of Beaumont, for appellant.

Kemper & Cramer, of Houston, and Richardson & Lanier, of Jasper, for appellee.

MURRAY, Justice.

This is an appeal from a judgment in the District Court of Jasper County, Texas, in favor of appellee, Ezra McMillan, against Jasper County Lumber Company of Texas, appellant, for damages for the death of his minor son, growing out of an automobile accident in which the small boy was struck and fatally injured by a truck of appellant. The case was tried to a jury and in response to special issues submitted the jury found that the driver of appellant's truck was guilty of certain acts of negligence which proximately caused the accident in which the child lost his life; that the accident was not unavoidable; that the damages suffered by McMillan for the loss of his minor son was $5,200. The parties agreed upon the sum of $195 as the proper amount for funeral expenses involved. Upon the admission and the verdict of the jury the court entered judgment for the total sum of $5,395. Appellant filed its motion for an instructed verdict, its motion for judgment non obstante veredicto and its motion for new trial, all in the proper order of filing, all of which were by the court overruled.

On appeal, the only two points urged by appellant are, first, there was no competent evidence to support a judgment for damages in excess of the agreed amount of $195 for funeral expenses, and, second, that the jury finding of $5,200 as damages was not only without support in the evidence but was so excessive as to show that the jury must have been moved by passion or prejudice in making such finding.

The testimony in the case relating to damages can be briefly summarized as follows: Jimmie Earl McMillan, the deceased child, was a boy 4 years, 7½ months old at the time of his death. He was very healthy, mentally bright and alert, affectionate and devoted to his mother and father. He did small chores around the house and was expected to do more as he grew older. The father was a carpenter, living on the outskirts of the town of Jasper. The family consisted of Mr. and Mrs. McMillan, two small girls and the one son, Jimmie, who was killed. On cross examination the father stated that he made a fair living for his family and if he could he intended to send his son through grammar school and high school, and possibly to college.

Appellant relies upon the cases of St. Louis, B. & M. R. R. Co. v. Jenkins, Tex. Civ.App., 163 S.W. 621; Patterson v. Williams, Tex.Civ.App., 225 S.W. 89; St. Louis, A. & T. Ry. Co. v. Johnston, 78 Tex. 536, 15 S.W. 104; West Lumber Co. v. Hunt, Tex.Civ.App., 219 S.W. 1106; Chicago, R. I. & G. Ry. Co. v. Dickerson, Tex.Civ.App., 272 S.W. 543; Texas Portland Cement & Lime Co. v. Lee, 36 Tex. Civ.App. 482, 82 S.W. 306; Greathouse v. Ft. Worth & D. C. Ry. Co., Tex.Com.App., 65 S.W.2d 762; and Cantu v. Southern Pacific Ry. Co., Tex.Civ.App., 166 S.W.2d 963. In all of these cases the well settled rules of law are repeated and applied to the facts of each case, that a parent is entitled to recover as actual damages for the death of a child only the pecuniary value of the child's services until he reaches his majority, less the cost and expense of the child's care, support, education and maintenance, and such sums as might be reasonably...