Allen v. Riedel

425 S.W.2d 665, 1968 Tex. App. LEXIS 2447
CourtCourt of Appeals of Texas
DecidedJanuary 19, 1968
Docket4194
StatusPublished
Cited by17 cases

This text of 425 S.W.2d 665 (Allen v. Riedel) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Riedel, 425 S.W.2d 665, 1968 Tex. App. LEXIS 2447 (Tex. Ct. App. 1968).

Opinions

GRISSOM, Chief Justice.

This suit was brought under the authority of Article 4671, known as the Wrongful Death Act. On Sunday, November 7th, 1965, Dr. Albert F. Riedel and his wife and their children, of Dallas, were visiting the Ivan J. Allens on the Allen ranch in East-land County. Mrs. Allen was Dr. Riedel’s aunt. Dr. Riedel, Mr. Allen and some of the Riedel children spent the morning building deer blinds on the ranch. About 30 minutes after they returned to the Allen home for lunch, a neighbor telephoned Mr. Allen that two car loads of people were climbing over his fence and suggested that he see them. He went to investigate. Dr. Riedel went along. When they reached the trespassers, Mr. Allen suggested to Dr. Rie-del that he stay in the pickup. Mr. Allen put the trespassers off his ranch. Immediately thereafter, while Dr. Riedel was standing about 47 feet from Mr. Allen, in or near some trees and weeds, he was shot and killed by Mr. Allen. Dr. Riedel’s widow and children sued Mr. Allen for the damages they suffered as a result thereof.

[668]*668A jury found that (1) Mr. Allen deliberately aimed his rifle; that (1A) he was aiming at some person; that (2) he did not intentionally fire his rifle; that (6) in carrying his rifle with the safety catch in the “off position” Mr. Allen was' guilty of negligence which (7) was a proximate cause of Dr. Riedel’s death; that (10) Mr. Allen allowed his rifle to be pointed at Dr. Riedel and that (11) this was negligence and (12) a proximate cause of Dr. Riedel’s death. The jury found the amount of damages sustained by Dr. Riedel’s four children in varying amounts, ranging from $35,000.00 for Dana Scott Riedel, the oldest, to $78,000.00 for Allison Lynn Riedel, the youngest, and that Mrs. Riedel was damaged $50,000.00.

All issues inquiring what pecuniary loss a child sustained contained the same instructions with reference to what the jury might consider. To illustrate, issue 16, the instruction in connection therewith and the answer thereto were as follows:

“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate the Plaintiff, Allison Lynn Riedel for the loss sustained by her as the result of the death of her father, Albert Riedel?
In answering this issue, you are instructed that you may take into consideration only the pecuniary loss, if any, sustained by Allison Lynn Riedel, and nothing else. By the term ‘pecuniary loss’, as applied to Allison Lynn Riedel, you may take into consideration the loss of nurture, if any, care, if any, maintenance and support, if any, counsel, if any, intellectual, moral and physical training, if any, and education, if any, and pecuniary contribution she would have, in reasonable probability, received from her deceased father from the date of his death to the date of trial, and in the future.
In determining the amounts, if any, you may consider the earnings of the said Albert Riedel, his age, and the condition of his health.
Answer by stating the amount, if any, in dollars and cents.
ANSWER: $78,000.00.”

The issue, instruction and answer relative to the pecuniary loss of Mrs. Riedel were as follows:

“SPECIAL ISSUE NO. 17:

What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Plaintiff Patsy H. Riedel for the loss sustained by her as the result of the death of Albert Riedel ?
In answering this issue, you are instructed that you may take into consideration only the pecuniary loss, if any, sustained by Patsy Riedel. By the term ‘pecuniary loss’ as applied to the wife, is meant maintenance and support, if any, from his earnings, if any, loss of contributions, if any, care, advice and counsel, if any, that the Plaintiff Patsy Riedel would have, in reasonable probability, received from the date of Albert Riedel’s death to the date of trial and in the future, if any, from Albert Riedel had he lived.
In determining the amounts, if any, you may consider the earnings of the said Albert Riedel, his age and the condition of his health.
Answer by stating the amount, if any, in dollars and cents.
ANSWER: $50,000.00.”

The court rendered judgment on said verdict in favor of Mrs. Riedel and the children for the amounts so found, plus $1780.00 funeral expenses, aggregating $260,780.00. Mr. Allen has appealed.

Appellant’s first two points are that the court committed reversible error in excluding (1) evidence of the marital troubles of [669]*669Doctor and Mrs.- Riedel and (2) evidence relative to Dr. Riedel’s character and morals. Such excluded testimony, tersely stated, was as follows:

(a) testimony by Mr. Allen that Dr. Riedel told him that his wife was unfaithful ; that she didn’t love him; that he “couldn’t make a go” of their marriage and that he came home early one day and found a naked doctor with his wife while she was wearing a red robe;

(b) testimony by Dr. Long, Mrs. Riedel’s treating psychiatrist, that she told him that she and Dr. Riedel had accused each other of “running around” with members of the opposite sex;

(c) testimony of Dr. Long that Mrs. Riedel told him her husband had accused her of infidelity with more than one man;

(d) testimony by Dr. Riedel’s treating psychiatrist, Dr. DeBolt, that Dr. Riedel told him he was involved with a young woman and concerned that it might lead to something sexual, with which subject he had experience;

(e) testimony of Dr. DeBolt that Dr. Riedel stated to him that he had found out that his wife had been unfaithful and of his reaction to that discovery;

(f) testimony by Dr. DeBolt of Dr. Riedel’s statements to him that he was having an affair with another woman; that he had accused his wife of infidelity and that he had an increase in his drinking problem;

(g) testimony by Dr. DeBolt of Dr. Riedel’s statements to him in 1965 concerning his mental turmoil, divorce and that he was not able to go back to his wife;

(h) testimony by Dr. DeBolt that Dr. Riedel told him of his affairs with other women; his belief that his wife knew about it; about striking his wife and that he contemplated divorce;

(i) testimony by Dr. DeBolt that Dr. Riedel told him that he and his wife had “traded partners” one night with another couple in a “necking episode.”

In connection with appellant’s contention that exclusion of such evidence was error and that it was reasonably calculated to cause and probably did cause rendition of an improper judgment he points out that the Riedel children, under the court’s instructions, were permitted to recover for loss of Dr. Riedel’s nurture, education and moral training, as well as loss of contributions, maintenance and support, and that Mrs. Riedel, under the instructions given, was permitted to recover for loss of maintenance and support from the doctor’s earnings, loss of contributions and loss of the care, advice and counsel which she probably would have received from Dr. Riedel had he not been killed.

Appellees were permitted to introduce evidence, over appellant’s objection that it was hearsay, that Dr.

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Allen v. Riedel
425 S.W.2d 665 (Court of Appeals of Texas, 1968)

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Bluebook (online)
425 S.W.2d 665, 1968 Tex. App. LEXIS 2447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-riedel-texapp-1968.