San Marcos Electric Light & Power Co. v. Compton

• Decision Date: 22 January 1908
• Citation: 107 S.W. 1151
• Court: Texas Court of Appeals
• Parties: SAN MARCOS ELECTRIC LIGHT & POWER CO. et al. v. COMPTON et al.<SMALL><SUP>*</SUP></SMALL>

107 S.W. 1151

SAN MARCOS ELECTRIC LIGHT & POWER CO. et al. v. COMPTON et al.^*

Court of Civil Appeals of Texas.

January 22, 1908.

Rehearing Denied March 4, 1908.

Appeal from District Court, Hays County; L. W. Moore, Judge.

Action by Mrs. M. A. Compton and others against the San Marcos Electric Light & Power Company and another. From a judgment for all the plaintiffs, except one against defendants separately, the named defendant appeals, and plaintiffs bring error. The cases were consolidated on appeal. Affirmed on appeal. Judgment reformed on writ of error, so as to award to plaintiffs judgment against both defendants for the several amounts awarded to each plaintiff.

Allen & Hart, R. E. McKie, and Jas. H. Hart, for appellant. Will G. Barber, for appellees.

KEY, J.

This suit was instituted by Mrs. M. A Compton and her children against the San Marcos Electric Light & Power Company and the San Marcos Telephone Company, to recover damages on account of the death of L. B. Compton, the husband of Mrs. Compton, and the father of the other plaintiffs. The plaintiffs alleged in their petition that long prior to the death of L. B. Compton the Electric Light & Power Company had poles and wires strung along Fourth street in the city of San Marcos, and transmitted as much as 1,100 volts of electricity over said wires; that at the time of Compton's death it maintained on that street one of its poles at a point about six inches from the outer edge of the sidewalk, which point was one of the most public places in the city; that to said pole were attached several wires of said company carrying deadly currents of electricity; that there was also attached to said pole a guy wire, which came from the top of the pole, passed across one or more of the electric wires, and thence hung down along the side of the pole to within a few feet of the ground; that the guy wire, by reason of its contact with the electric wires, was also charged with the current of electricity; that at the time in question the lower end of the guy wire was tied to the pole. It was also alleged that the electric wires were not properly insulated; that by reason of the guy wire swinging in contact with them the insulation had worn from them; and that the Electric Light & Power Company was grossly negligent in permitting the guy wire to remain in the position and condition above stated, and in transmitting electricity through the main wires while the guy wire was so in contact with them. Plaintiffs further alleged that they were informed and believed and charged that the other defendant the San Marcos Telephone Company had placed and maintained the guy wire in the position above stated, and that both defendants were guilty of gross negligence in permitting the guy wire to remain, and in transmitting electricity over the main wires while the guy wire was in contact with them and in the position above stated. They further alleged that on June 26, 1905, while the conditions were as above stated, L. B. Compton, while standing near the pole referred to, placed his hand upon said pole and upon the guy wire and was instantly killed by a current of electricity being transmitted through his body from the guy wire. The Electric Light & Power Company filed an answer containing a general demurrer, special exceptions, general denial, a plea of contributory negligence, and a cross-action against the San Marcos Telephone Company, asking, in the event of the plaintiffs recovering against the Electric Light & Power Company, that it have judgment over against its codefendant the San Marcos Telephone Company. The San Marcos Telephone Company answered by general demurrer, special exceptions, general denial, and a plea of contributory negligence. It also filed an answer to the cross-action of its codefendant, including general and special demurrers and a general denial. The plaintiffs filed a supplemental petition, interposing a general demurrer and general denial to the answers of the defendants. There was a jury trial, which resulted in a verdict, which reads as follows: "We, the jury, find the defendants the San Marcos Electric Light & Power Company and the San Marcos Telephone Company both guilty of gross negligence that caused the death of L. B. Compton, and therefore assess the damages at five thousand ($5,000) dollars, or, in other words, $2,500 each of the companies, proportioned as follows: The plaintiff Idalena Compton to receive from the San Marcos Electric Light & Power Company $1,500 and also $1,500 from the San Marcos Telephone Company; the plaintiff A. S. Compton to receive from the San Marcos Electric Light & Power Company the sum of $750, and also $750 from the San Marcos Telephone Company; the plaintiff Mrs. M. A. Compton to receive from the San Marcos Electric Light & Power Company the sum of $250, and also $250 from the San Marcos Telephone Company. We, the jury, find that the San Marcos Telephone Company is not liable to damages to the San Marcos Electric Light & Power Company. We, the jury, find against Bruce Compton in favor of both defendants." After the verdict had been received, the plaintiffs filed a motion, asking the court to render judgment for each of them against each of the defendants for the full amount awarded by the verdict to each of them, and, in the event of the court's refusing to render such judgment, they asked that the verdict be set aside and a new trial granted, which motion was overruled. The defendant San Marcos Telephone Company filed a motion for a new trial, which was overruled, and that defendant has brought the case to this court by appeal. The plaintiffs have also brought the case to this court by writ of error, and the two appeals have been consolidated, and will be disposed of by this opinion.

Upon the measure of damages, the court instructed the jury as follows: "As to the plaintiff Mrs. M. A. Compton, and also as to the plaintiffs Idalena Compton and A. S. Compton, you are charged that the law only allows a recovery for the actual pecuniary loss sustained, if any; since it cannot, and does not, undertake to do anything except only to afford compensation for such pecuniary loss sustained by the parties, where the facts are such as to render the defendant liable under the law. Such pecuniary loss as to the plaintiffs Idalena Compton and A. S. Compton would include, and you should consider, the support and maintenance, if any, which they would reasonably have received from said L. B. Compton, had he lived, any personal attention and care, counsel, and nurture, and any physical, mental, and moral training which said Compton would reasonably have given to them, had he lived. But you will not in any event consider any of the elements of damage mentioned except such as you may conclude from the evidence there was a reasonable probability of the plaintiffs receiving from said Compton, had he lived. And you will not consider nor allow anything for any grief, sorrow, or distress suffered by the plaintiffs as result of the death of the said Compton, nor for any loss of the society and companionship of the said Compton, nor, in fact, any element or possible element of damage, except only such as you are hereinabove expressly authorized to consider." The San Marcos Telephone Company requested the following instruction, the refusal of which is assigned as error: "You are charged that, in determining the amount to which the plaintiffs in this case would be entitled to recover, if you should find that any or all are entitled to recover anything, you will not take into consideration any compensation to them, or either of them, as a solace or for the loss of the companionship of the deceased, L. B. Compton, but you will allow them or either of them only such a sum or sums of money as if paid now you find from the evidence would be a fair compensation to them for the pecuniary loss, if any, sustained by the death of the said L. B. Compton." It is contended that the requested instruction was an appropriate supplement to the instruction given by the court as to the measure of damages, and that error was committed in refusing that instruction. It is not contended that the matters which the court told the jury might be considered in determining the amount of damages included anything referred to in the refused instruction, but it is contended that the latter instruction would have more distinctly and clearly informed the jury that the matters therein specified should not be considered by them than did the charge of the court. We are inclined to hold that the court's charge, wherein...