Peek v. Parker

• Decision Date: 02 April 1948
• Docket Number: No. 14935.,14935.
• Citation: 210 S.W.2d 619
• Parties: PEEK v. PARKER et al.
• Court: Texas Court of Appeals

210 S.W.2d 619

PEEK v. PARKER et al.

No. 14935.

Court of Civil Appeals of Texas. Fort Worth.

April 2, 1948.

Rehearing Denied April 30, 1948.

Appeal from District Court, Jack County; J. E. Carter, Judge.

Action by J. B. Parker and others against Vergie J. Peek for wrongful death. From a judgment for $2,675.83, the defendant appeals.

Reversed and remanded.

Strasburger, Price, Holland, Kelton & Miller and Royal H. Brin, Jr., all of Dallas, for appellant.

C. O. McMillan and Sam Cleveland, both of Stephenville, for appellees.

McDONALD, Chief Justice.

Jessie C. Parker and his young son were killed in a collision of two trucks. Judgment was awarded on a jury verdict to J. B. Parker, individually and as next friend of William Baldwin, non compos mentis, and to Mrs. Pearl Strafello, as the surviving beneficiaries of the deceased persons.

Appellant Peek, the defendant below and the driver of one of the trucks, appeals, relying on three points of error.

J. B. Parker was the father of Jessie C. Parker. Under the first point of error it is claimed that the evidence did not show any pecuniary loss by J. B. Parker as a result of the death of the son, and under the second point it is claimed that if he suffered any loss the allowance of the sum of $2,675.83 therefor in the verdict and judgment was excessive. The gist of appellant's claim is that appellee J. B. Parker, a man about sixty years of age, was making his own living at the time of his son's death, that the son was not contributing to the support of the father, and that the evidence as to probability of support in the future was too speculative to serve as a basis for a recovery of damages.

When the evidence is viewed in the light most favorable to the verdict, it shows that J. B. Parker was sixty years of age and had a life expectancy of fourteen years at the time of his son's death. The son was about thirty-five years of age. His mother, and his first wife, the mother of the child who was killed, both had died some years before. In 1942 the son was living in California. He paid his father's way to California, and for about three years the father lived with the son, paying for neither room nor board, although he had a job. During that time the son's wages were about $70. per week. The son told his wife during that time that his father took care of him while he was young, and that he knew that it was time for him to take care of his father. He also told his wife that he was going to buy a farm in Texas, and have his father live with him. Later, the son and his wife were divorced, and the son was unmarried at the time of his death. The father had another child, a daughter, but the evidence does not show that she contributed materially to her father's support. The father did not own any property, but at the time of the son's death the father was still living in California, and at such time seems to have been self-supporting. The son had returned to Texas, where he had lived before going to California. At the time of his death, the son owned a small truck, and was earning from thirty-five to fifty cents per hour, eight or nine hours per day. At that time it appears that the father, still in California, was perhaps earning as much or more than was the son. Several witnesses testified to having heard the son declare that he wanted to return to California and take care of his father, that his father was getting old and would some day be dependent on him. He said that he would like to get a farm, and have his father live with him and his boy.

Appellant appears to contend that in order to warrant a recovery the evidence must show that the son was actually contributing to his father's support at the time of his death, and that a judgment in favor of the father cannot be upheld where it is shown that the father was earning his own living at the time the son lost his life.

"The measure of damages in an action by a parent for the death of an adult child is the pecuniary loss actually sustained by the plaintiff; that is, the parent may recover the present value of such amount as he may be able to show that the child, had he lived, would probably have contributed to the parent's support. * * * If it were possible to determine the exact amount which the child, had he lived, would have contributed, the present worth of that amount, of course, would measure the recovery.

"`That being impossible, in a case of this kind, the deceased being an adult, and the parents having no legal right or demand to the son's earning or to contributions from him the amount of loss sustained is to be ascertained from all the circumstances, relations, and conditions of the parties.'" (Citing Francis v. Atchison, T. & S. F. Ry. Co., 113 Tex. 202, 253 S.W. 819, 30 A.L.R. 114.) 33 Tex.Jur. 154.

In order to show how much the adult child might have contributed to his parent's support, "* * * the plaintiff is permitted to show the character of the child, his affection and disposition toward his father and mother, his acts of assistance and donations, his earning capacity at the time of his death, his probable future earning capacity, the amount of his property, his age and expectancy, and like matters. In short, any relevant testimony is admissible that tends to show the will and ability of the child to confer benefit on the parent." 33 Tex.Jur. 200, 201.

There is testimony in the present case showing that the father had suffered an impairment in health, and that it was reasonably probable that he would soon be unable to support himself. Appellant argues that the record shows that in the years past the father had assisted the son to a greater extent than the son had supported the father. Even if this were true, it is not enough by itself to justify us in overturning the verdict of the jury. From the evidence favorable to the verdict, it appears that the father is now getting old, that he will soon be physically unable to hold a job, and that his son, had he lived, would have contributed to his father's support after the latter had become unable to make his own way.

Nor can we see that the verdict is excessive. If the son had done no more than provide his fat...