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

• Decision Date: 02 January 1909
• Citation: 115 S.W. 302
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. WALLACE et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

115 S.W. 302

MISSOURI, K. & T. RY. CO. OF TEXAS v. WALLACE et al.^†

Court of Civil Appeals of Texas.

January 2, 1909.

Rehearing Denied January 23, 1909.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Action by Lucy Wallace and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiffs, defendant appeals. Affirmed.

Coke, Miller & Coke, John C. Wall, and Head, Dillard, Smith & Head, for appellant. Wolfe, Hare & Maxey, for appellees.

RAINEY, C. J.

This is a suit by the wife, children, and mother against the Missouri, Kansas & Texas Railway Company of Texas to recover damages for the negligent killing of Herbert M. Wallace, husband, father, and son, respectively, of plaintiffs. Wallace was a fireman in appellant's employ, and was killed by reason of a head-end collision between the engine he was firing and another operated by appellant's servants. Appellant admitted liability for such pecuniary damages as plaintiffs suffered by the death of said Herbert M. Wallace. A trial resulted in a verdict and judgment in favor of plaintiffs for $17,500, from which the railway company appeals.

The first assignment of error complains of the third paragraph of the charge, which reads as follows: "You are instructed to find for plaintiffs such sum as you find and believe from the evidence to represent the present worth or value of the pecuniary benefits, if any, which you believe from the evidence his wife and children and mother, who are plaintiffs herein, had a reasonable expectation that the said H. M. Wallace would have contributed to them in the future, had he not been killed; and you will apportion the amount you find among the plaintiffs in such sum as you may determine each is entitled to receive." In this connection appellant requested the following instruction, viz.: "In this case you are instructed that the mother, Amanda Wallace, is entitled to recover of and from the defendant the present cash value of whatever pecuniary benefit she had a reasonable expectation of receiving during her lifetime from her son, H. M. Wallace, had he lived." The contention of appellant is that the measure of the mother's damage was the reasonable value of the pecuniary benefits she had a reasonable expectation of receiving during her lifetime, and not the value of the pecuniary benefits she had a reasonable expectation of receiving during his lifetime, had he lived, as was charged by the court, and that the court's charge was misleading to the jury. We can see no practical difference between the charge given and the one asked. The mother could not have had any expectation of pecuniary benefit from her son, had he lived, beyond the period of her life, so the jury could not have possibly been misled by the court's charge in rendering for the mother a verdict by reason of said charge greater than her life expectancy, and this she was entitled to. Railway Co. v. Bowles, ...