Pacific Express Co. v. Watson

• Decision Date: 16 October 1909
• Citation: 124 S.W. 127
• Court: Texas Court of Appeals
• Parties: PACIFIC EXPRESS CO. et al. v. WATSON.<SMALL><SUP>†</SUP></SMALL>

124 S.W. 127

PACIFIC EXPRESS CO. et al. v. WATSON.^†

Court of Civil Appeals of Texas.

October 16, 1909.

Rehearing Denied December 4, 1909.

Appeal from District Court, Taylor County; J. H. Calhoun, Judge.

Action by Mrs. Mollie E. Watson against the Pacific Express Company and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Wagstaff & Davidson and Ethridge & McCormick, for appellants. Hardwicke & Hardwicke and Theodore Mack, for appellee.

DUNKLIN, J.

While Will W. Watson, a minor, was engaged in the service of the Pacific Express Company, he stepped from an express car upon a baggage truck having a defective floor, which defect caused him to fall and sustain injuries. The truck had been left near the car by employés of the Texas & Pacific Railway Company and was the property of the latter company. The accident happened July 30, 1905, at the Texas & Pacific Railway depot in Abilene. Will Watson attained the age of 21 years September 7, 1905, and was living at the date of trial, September 7, 1908, and in another suit had already recovered judgment in his own right for $10,000 as damages for the injuries sustained by him. The verdict in this case was in plaintiff's favor for $1,000.

Upon the measure of damages the court charged the jury that, in case of a verdict in favor of Mrs. Watson, then, in addition to the loss of earnings of her son during minority and the value of her services in nursing him during that period, she should be allowed as damages the reasonable value of such pecuniary aid as the mother had a reasonable expectation of receiving from her son after he reached the age of 21 years. This charge is assigned as error by both defendants in the case, and those assignments are sustained. Doubtless the trial court was induced to give this instruction by the decision of Justice Fisher, of the Court of Civil Appeals, in the case of Railway v. Hall, reported in 34 Tex. Civ. App. 535, 80 S. W. 133, which seems to sustain such an instruction. However, such a holding was not necessary to a disposition of the appeal in that case, as it appears from the opinion of the court that in the plaintiff's pleadings no claim was made that the father, who was plaintiff in the case, had a reasonable expectation of receiving pecuniary benefits from his injured son, Charles Hall, after the son had reached the age of 21 years, and the court further held that the evidence was not of such a character as to warrant a verdict in plaintiff's favor as to that item of damages.

The case of Railway v. Johnson, 99 Tex. 337, 90 S. W. 164, was one in which the mother sued for damages for personal injuries to her minor son, and our Supreme Court used the following language: "Over the objection of the defendant, the court admitted evidence to show that Mrs. Alice Johnson depended upon her work for a living. The decisions relied on to sustain this ruling were made in cases in which the plaintiffs sued for damages resulting from the death of relatives in which their rights of action and measure of damages consisted of the value of pecuniary benefits or contributions which they would have received from the deceased had they lived; and evidence of the necessity for such help arising from the poverty of the plaintiffs tended to show the probability that it would have been extended. International & G. N. R. R. Co. v. Kindred, 57 Tex. 491; Houston & T. C. Ry. Co. v. White 56 S. W. 207; International & G. N. R. R. Co. v. Knight, 52 S. W. 641. But the rule is not the same in cases like this, where the right of action and measure of damages are different. The mother's right was only to recover for the diminution in the value of the minor son's services during minority, with such expenses as may have been rendered necessary by the injury, and her poverty did not tend to show these things. Houston & G. N. R. R. Co. v. Miller, 49 Tex. 332; Missouri Pac. Ry. Co. v. Lyde, 57 Tex. 505; Missouri, K. & T. R. R. Co. v. Hannig, 91 Tex. 349 ; and cases cited. More than that, she could not recover, whether rich or poor, for the right of action for all other damages resulting from the son's injury belongs to him."

While it does not appear from the report of that case that the mother of the son sought to recover for pecuniary benefits from her son's services after he had attained the age of majority, we think the language quoted above clearly indicates that our Supreme Court would not hold that such benefits could be recovered by a parent where the injury to a minor did not result in death. Unquestionably, Will W. Watson has the legal right to recover the full amount of his loss of earnings sustained after he attained the age of 21 years...