St. Louis Southwestern Ry. Co. of Texas v. Huey

• Decision Date: 18 June 1910
• Citation: 130 S.W. 1017
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HUEY et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

130 S.W. 1017

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HUEY et al.^†

Court of Civil Appeals of Texas.

June 18, 1910.

Rehearing Denied October 8, 1910.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action for wrongful death by Dallas Huey and another against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs, and defendant appeals. Affirmed.

E. B. Perkins, Daniel Upthegrove, and J. E. Gilbert, for appellant. McLean & Carlock, for appellees.

TALBOT, J.

This suit was filed by the appellees, Dallas Huey and wife, the father and mother of J. D. Huey, against the appellant, to recover damages growing out of the death of J. D. Huey in an accident in appellant's yard at Noell Junction November 8, 1907. The surviving widow of J. D. Huey was made a party plaintiff, but she had been settled with by appellant prior to filing of this action, and verdict and judgment was in favor of appellant as to her, while Dallas Huey and wife recovered judgment for $2,250, divided equally between them. Appellees allege that deceased was their son, and was a brakeman on freight trains of appellant between Dallas and Noell Junction, and had been in such service for several years; that while engaged in such service November 8, 1907, appellant's servants negligently ran one of its engines over the deceased, and instantly killed him; that deceased at the time of his death was a strong and healthy young man, 28 years old, sober and industrious, earning and capable of earning $100 to $150 per month; that appellees are advanced in years and in poor circumstances; and that deceased had contributed, and would have continued to contribute, to their maintenance and support had he lived. The defendant pleaded a general denial, contributory negligence, assumed risk, and that appellees had no reasonable expectation of receiving pecuniary aid from said J. D. Huey, because Dallas Huey is an able-bodied man, able to make a living for himself and wife that deceased was married and about 32 years old, and his habits of industry, sobriety, and economy were such that he never had and could not be expected to contribute to their support that he was in the habit of drinking and carousing, which habits were of long standing, and he was not economical, and his earnings were not more than sufficient for the support of himself and wife; that, instead of contributing to the support of his parents, he was in the habit of drawing on them for money, and having them pay out money for him, and that appellees had no right to expect and no reasonable expectation of receiving anything from him.

1. The trial court did not err in overruling the defendant's motion to strike out the testimony of the plaintiff to the effect that he, plaintiff, had a conversation with the deceased shortly before the latter's death in which the plaintiff's needy financial condition was made known, and that the deceased in said conversation declared his intention to assist plaintiff in the future by gifts of money. Such a declaration was competent evidence in a suit of this character. It is said that the pecuniary loss to the father from the death of his son must necessarily be proved by circumstances, and that among the circumstances going to show such loss is the disposition of the latter to contribute pecuniarily to the aid of the former, and, as the disposition and feelings of a person may be proved by his expressions, the declarations of the deceased son are, in connection with other testimony, admissible in evidence for the purpose of showing that he was disposed to aid his father pecuniarily. Railway Co. v. Bonnet, 38 S. W. 813; Railway Co. v. Brown et al., 33 Tex. Civ. App. 269, 76 S. W. 794. Another reason why there was no error in refusing to strike out this testimony is that practically the same testimony was given by other witnesses without objection on the part of appellant, and the same was therefore harmless.

2. It is assigned that the court erred in refusing to give the following charge, requested by appellant: "There is no legal obligation or duty resting upon an adult son to contribute any part of his earnings to the support or maintenance of his parents or either of them. You are therefore instructed in this case that, before Dallas Huey or his wife can recover herein, they must have shown by a preponderance of the evidence upon that phase of the case, not only that J. D. Huey, deceased, was willing to contribute to their maintenance and support, but that he was financially able to do so, and that he would continue to be financially able, as well as willing to do so, taking into consideration the legal obligations and duties involved upon deceased as a married man, and the probabilities of the increase of his expenses as...