Texas & P. Ry. Co. v. Wilder

92 F. 953, 35 C.C.A. 105, 1899 U.S. App. LEXIS 2214

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 27, 1899
• Docket: No. 722
• Status: Published

Opinions

PABI.AXG K, District Judge,

after stating tlie case, delivered the opinion of the court.

There is no merit in the second and third specifications of error, which are founded upon the false assumption that: the damages in the cause were restricted to the benefits which the plaintiffs might have derived from the services of their sou up to the time of his majority. We are clearly of opinion that the damages should not have been so restricted, and that in this cause it was proper for the trial judge to charge the jury that, in assessing the damages, they had a right to consider what reasonable expectations the plaintiffs liad of pecuniary benefits to be received by them from their son after he should have readied the age of majority. The statutes of the state of Texas which give a right of action in cases like the one at bar provide, among other matters, that a suit may be brought for actual damages on account of injuries causing the death of any person by the negligence or carelessness of the owner of any railroad, or of any person in charge or coni rol of any railroad, or of their servants or agents. The right of action is also given “when the death of any person is caused by the wrongful act, negligence, unskillfulness, or default of another.” The action is declared by the statutes to be for the sole and exclusive benefit of the surviving husband, wife, children, and. parents of the decedent. The statutes provide, further, that, in the .actions just stated, “the jury may give such damages its they may think proportioned to the injury resulting from such death.” Rev. St. arts. 2899, 2909. There is nothing in the statutes just referred to which limits the right of the parents in the present cause to the recovery of compensation for the services of their son during his minority. On the contrary, those statutes, as applied to the present cause, provide for full pecuniary compensation to the parents for the loss of their sou. This is shown both by the language conferring the right of action and by the power given the jui-y in assessing the damages.

It has often been held, in similar cases, that the damages are not restricted to the loss of benefits to which the plaintiff liad a legal right. It is plain that the compensation to the parents, under the statutes, would not be adequate if it was limited to the loss of the minor’s services up to the time of his majority. If the objection be that it is difficult to ascertain the amount of the damages caused by loss of benefits after majority, it should be noted that this objection might also be made, although perhaps with less force, to the damages for loss of service before majority. There can be no certainty that a child will live co majority and perform services for his parents. If he lives, he may sicken, and become a burden to his parents. Still, it is not contended, as to damages up to a child’s majority, that the difficulty in ascertaining them is a sufficient ground for rejecting a claim for them. It is evident that there is much difficulty in assessing damages resulting from loss of life, and that strict accuracy cannot be expected in a matter involving so much uncertainty. Yet the right of recovery for injuries resulting from death being plainly given, the courts, availing themselves of all the circumstances which may assist them in reaching a proper conclusion, must, whenever possible, afford the relief which the lawmaker intends to give.

The counsel for the plaintiff in error state in their brief that there is a conflict of authority on the point which we are now examining. It is plain to us that a number of cases which seem to hold in opposition to our views in this matter were founded upon statutes which restricted the right of recovery. In 3 Suth. Dam. §§ 1273, 1274, it is said that:

“In several states, the damages for the death of a child have been limited to the pecuniary benefits the parents had a legal right to claim for the child’s services, and therefore the courts have confined the estimate to the period of minority. This restriction is believed to be contrary to the general principle on which pecuniary damages are allowed in favor of all classes who are next of kin to the deceased. That principle is that the jury should calculate the damages, in reference to the reasonable expectation of benefits as of right or otherwise, from' the continuance of the life. Legal ability alone is not the test of the injury in respect of which damages may be recovered under the statutes, but the reasonable expectation of pecuniary advantage by the relative remaining alive may be taken into account. * * * Statutes which give the right to recover for the benefit of the next of kin permit the parents to recdver for the death of adult children, on the principle just stated. Why, therefore, when a minor is killed, should the estimate of damages stop arbitrarily at majority?”

In some jurisdictions, the parent has, by statute, an action against the child for support. But, apart from any such statute, there certainly is an indisputable natural obligation on the part of the child to support his necessitous parents. The plain dictate of nature requires a child, grown up to manhood, to relieve the wants of his destitute parents, and the obligation is one which men ordinarily fulfill. Why, then, should parents who have been deprived of their child by the fault of another be debarred from compensation for the full benefits which they reasonably expected from the child? In Railway Co. v. Compton, 75 Tex. 667, 13 S. W. 667; and in Railway Co. v. Sciacca, 80 Tex. 350, 16 S. W. 31, it was said that the parents’ right of recovery is not limited to the services of the child up to majority. In the case at bar the son was over 18 years of age. He was strong, healthy, sober, and hard-working. He was dutiful, and evinced his willingness to assist his parents by freely giving his earnings to his mother. It was plainly proper in this cause for the trial judge to instruct the jury tjmt they could consider whether the parents had a reasonable expectation that their son would continúe to assist them after his majority.

The fourth specification of error, which complains of the refusal of the trial court to give a special charge, is without force. The trial judge, in his general charge, instructed the jury “that if deceased knew of the condition of the engine, or by the use of ordinary care could have known it, plaintiffs cannot recover.” This was sufficient on the matter which is the subject of the special charge refused.

We find that the error complained of by the first specification of error is well founded, and compels the reversal of the judgment of the lower court. While this cause was pending in the state court, the depositions of certain witnesses were taken under the practice of the state of Texas. When these depositions were offered in evidence on the trial in the federal court, they vrere objected to on the ground that the witnesses were accessible, and resided within 100 miles of the place where this cause was tried, and that there was no proof of facts permitting the depositions to be read. We have carefully examined the point, and have readied the conclusion that the depositions should have been rejected. The court admitted them on the ground that they were taken and returned into court while the case was pending in the slate court, and before its removal. Act March 3, 1875, § 4, provides that, upon the removal of a cause from a state court, “all injunctions, orders and other proceedings had in such court prior to its removal, shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed.” We understand that it is upon this statute that the court based its ad ion in admitting the depositions. To sustain the admission of fhe depositions, the counsel for the defendants in error cite, in addition to the act of March 3, 1875, the act of March 9, 1892, entitled “An act to provide an additional mode of taking depositions of witnesses in causes pending in the courts of the United States.” It is evident that neither statute had the effect of making the depositions admissible, under the circumstances of this cause. There are but two cases cited by the counsel for the defendants in error in support of the admissibility of the depositions, viz.: Fogg v. Fisk, 19 Fed. 235, and Davis Railway Co., 25 Fed. 786. In Fogg v. Fisk, Judge Wallace held that an order to examine the defendant in the state court, made prior to the removal, was an “order or proceeding” which was removed to the federal court with the cause, under the act of 1875, and that the order should be carried out in the federal court. But Lire supreme court reversed Judge Wallace. 113 U. S. 713, 5 Sup. Ct. 724. In Davis v. Railway Co., just cited, Judge (now Justice) Brewer did not deal with the question of depositions. The point involved was whether a demurrer which was overruled in the state court prior to the removal should still be considered as overruled after the removal. Judge Brewer very correctly held that the overruling of the demurrer was an order or proceeding which, under the act of 1875, was removed with the cause. It is thus seen that the only two cases cited to support the admission of the depositions in tills case do not in fact sustain the contention of the counsel who cited them. In Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, already cited, and in Railway Co. v. Botsford, 141 U. S. 256, 11 Sup. Ct. 1000, the supreme court made it clear that in the federal courts, regardless of state practice or statutes, the testimony must be oral. When a deposition is taken de bene esse, under Rev. St. U. S. § 863, it is not final, and, under the express terms of Id. § 865, it cannot be read on the trial, unless “it appears to the satisfaction of the court that tbe witness is then dead or gone out of the United States or to a greater distance than 100 miles from the place where the court is sitting, or that by reason of age, sickness, bodily infirmity or imprisonment, he is unable to travel and appear at court.” See Insurance Co. v. Southgate, 5 Pet. 604; Harris v. Wall, 7 How. 693. In Shellabarger v. Oliver, 64 Fed. 306, it was held that the act of March 9, 1892, does not allow depositions taken under the state law to be read in the federal court unless they could be read under Rev. St. U. S. § 865. In Seeley v. Kansas City Star Co., 71 Fed. 555, Judge Phillips said that he knew of no instance in which the deposition taken in the state court was allowed to be read in the federal court. In Register Co. v. Leland, 77 Fed. 242, it was held that the act of March 9, 1892, only applies to the mode of taking depositions, and not to the use to which they are to be put. In Despeaux v. Railroad Co., 81 Fed. 897, Judge Dallas said that the act of March 9, 1892, applies only to the mode of taking depositions. He quoted, with approval, Shellabarger v. Oliver and Register Co. v. Leland, supra, and said that it would be unfortunate if the act of March 9, 1892, had been differently construed. In Whitford v. Clark Co., 119 U. S. 522, 7 Sup. Ct. 308, the supreme court reversed the case because depositions taken de bene esse, under Rev. St. U. S. § 863, had been admitted, though the witnesses were present and able to testify orally. It is plain that depositions taken under the federal statute cannot be read, if at the trial the witnesses can be obtained. It is not to be presumed that congress intended that depositions taken in the mode prescribed by the state law should be read in evidence, even though at the trial the witness could be had, and yet that testimony taken under Rev. St., U. S. § 863, could not be read under the same circumstances. It is plain to us that no such discrimination against the federal statute was intended by congress, and that the act of March 9, 1892, refers only, as appears from its plain reading, to the mode and manner of taking testimony, and not to its effect after it is taken, nor to the conditions under which it may be read. The bulk, if not the entirety, of the evidence of the plaintiffs below is contained in the depositions, and we are constrained to remand the cause. It is therefore ordered that the judgment of the lower court be reversed, and this cause is remanded to that court, with the instruction to grant a new trial.