Missouri, K. & T. Ry. Co. of Texas v. Butts

• Court: Texas Court of Appeals
• Writing for the Court: Rice
• Citation: Missouri, K. & T. Ry. Co. of Texas v. Butts, 132 S.W. 88, 62 Tex.Civ.App. 539 (Tex. App. 1910)
• Decision Date: 02 November 1910
• Petition History: writ ref'd
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. BUTTS.

132 S.W. 88

MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. BUTTS.

Court of Civil Appeals of Texas.

November 2, 1910.

Rehearing Denied December 7, 1910.

Appeal from District Court, McLennan County; Marshall Surratt, Judge.

Action by J. C. Butts against the Missouri Kansas & Texas Railway Company of Texas and others. From a judgment for plaintiff against defendant named, it appeals. Affirmed.

Coke, Miller & Coke and Clark, Yantis & Clark, for appellant. Allan D. Sanford and Geo. N. Denton, for appellee.

RICE, J.

On the 12th of June, 1907, Mrs. Susan E. Butts, while crossing Oak street, in the town of West, was run over and killed by an engine drawing a local freight train on appellant's line of railway, which ran north and south through said town; and this action was brought against it by her son, J. C. Butts, to recover damages therefor, in which suit Mrs. Ophelia Lynn and husband, J. T. Lynn, as well as the minors, True Gray, Bernice Gray, and Annie Gray, were made parties defendant, the former being the sister and the last three the children of a deceased sister of Mrs. Susan Butts, it being alleged that they were not entitled to recover, because they had no pecuniary interest in the life of the said Mrs. Butts. The negligence alleged consisted in the failure of appellant's operatives to ring the bell or blow the whistle of the engine before reaching said street crossing, as they were required to do under the law, and in failing to keep a lookout for persons crossing said street, and running at a greater rate of speed than six miles an hour, which was prohibited by the ordinances of said town; all of which were alleged to be the proximate cause of her death. The defendant answered by general and special exceptions, general denial, and by plea of contributory negligence on the part of said Mrs. Butts. A jury trial resulted in a verdict and judgment in favor of plaintiff in the sum of $1,200 against the railway company, and in favor of the company against Mrs. Ophelia Lynn and husband, plaintiff having dismissed as against said minor defendants; from which judgment this appeal is prosecuted.

The first and second assignments present the same question in this: By the first it is asserted that the court erred in overruling defendant's motion for a new trial, because the verdict and judgment rendered were contrary to the law and evidence, in that the evidence did not show that plaintiff suffered loss by reason of the death of his mother sufficient to entitle him to recover; and by the second it was urged that the court erred in failing to peremptorily instruct a verdict in behalf of the defendant, for the reason that it appeared from the undisputed evidence that plaintiff did not sustain any damage for which he would be entitled in law to recover.

By its proposition under the first assignment appellant insists that before a recovery can be had for the death of a parent, it must appear that the party to be benefited by the recovery has suffered a pecuniary loss dependent upon such relationship. This is conceded to be the law, but appellee contends that this requirement was met by the proof. It appears from the evidence that he had lived with his mother up to the time of his majority, and from that time until his marriage; that subsequent to his marriage, which occurred in 1898, his mother had made her home with him, and that since said time she had continuously performed all the household duties, with the exception of caring for the room of his wife, Mrs. Kate Butts, which was looked after by the latter. Plaintiff was 33 years of age, and was the editor of the West Times, a paper published in the town, while his wife conducted a millinery business, giving her entire attention thereto. The deceased was shown to be about 65 years of age at the time of her death, but was exceptionally strong and stout, rarely ever sick, and able and willing to perform the duties of housekeeper; and for which the testimony showed plaintiff would have had to pay some $15 or $20 per month, if she had not performed same. Besides the household work, she had a class in embroidery and frequently did fancy work, from which she derived a revenue and paid for most of her wearing apparel and other personal expenses. The plaintiff, however, paid the house rent and paid for all living expenses, occasionally giving his mother from time to time, articles of clothing. He testified that if he needed any money and she had it, that she gave it to him. He further testified that his mother's services, by reason of her great economy and the personal interest that she took in his affairs, were worth to him the sum of $25 per month; and that she would have been likely, by reason of her health, to have continued for a period of many years to perform these services. There was no evidence controverting this, but, on the contrary, it was confirmed by other witnesses. This being true, it would appear that plaintiff had a pecuniary interest in the life of his mother, such as seems to be recognized by the authorities in this state as a basis for recovery. See Ry. Co. v. Long (Tex. Civ. App.) 26 S. W. 116; Ry. Co. v. Henry, 75 Tex. 221, 12 S. W. 828; March v. Walker, 48 Tex. 375; Ry. Co. v. Cowser, 57 Tex. 303; Ry. Co. v. Lehmberg, 75 Tex. 61, 12 S. W. 838. We also desire to cite in this connection the following cases from other jurisdictions, in which the exact question here presented, after full consideration, has been determined in favor of appellee's contention: Baltimore & Ohio R. R. Co. v. State, for the Use of Martha F. Mahone et al., 63 Md. 135; Phalen v. Rochester Ry., 31 App. Div. 448, 52 N. Y. Supp. 836; Lazelle v. Newfane, 70 Vt. 440, 41 Atl. 511; Omaha Water Co. v. Schamel, 78 C. C. A. 68, 147 Fed. 502; Countryman v. Fonda J. & G. R. Co., 166 N. Y. 201, 59 N. E. 822, 82 Am. St. Rep. 640. See, also, note to Carter, Adm'r, v. West Jersey & Sea Shore R. R. Co., 76 N. J. Law, 602, 71 Atl. 253, 19 L. R. A. (N. S.) 128. In the two first cases last above cited, adult children brought the suits for the recovery of damages sustained by them on account of the death of their mother, and in each of which it was directly held that they were entitled to recover on the ground that they sustained pecuniary damage by reason of her death; it being shown on the trial that the mother had aided by her labor in the support and...