West Lumber Co. v. Hunt

219 S.W. 1106

• Court: Court of Appeals of Texas
• Decided: February 11, 1920
• Docket: No. 520.
• Status: Published

Opinions

Plaintiff's petition alleged that the death of his son was proximately caused by the negligence of defendant in these respects, to wit:

(1) That the engine was dangerous and unsafe because not equipped with pony trucks; (2) because neither said engine nor any of the cars "were equipped with any brake system whatever to assist or aid the engineer in bringing the engine or its train to a stop"; (3) because the drive axles "were crooked and bent in such a way as to throw said driving wheels out of balance, and thus prevent them from following the rail in a free and unobstructed manner"; (4) because defendant was negligent "in failing to use ordinary and reasonable care to keep said engine in a state of repair and in condition to be operated with safety, and in causing the said engine to be attached to a heavily loaded train of cars loaded with logs as aforesaid, without any brakes on said engine or any of said cars to enable it to handle said train safely upon and down the grades on said tramroad."

And in paragraph 5 of his petition the plaintiff alleged that —

The tramroad upon which the engine was being operated when his son Earnest Lee Hunt was killed, "extends over hills and into valleys, which makes and causes high grades; and that when going down one of said grades at a point upon said road the said engineer was unable to control the speed of said engine, because (a) said engine was not heavy enough to safely handle and hold back the great weight of said 14 carloads of logs, as they proceeded to gain speed down said grade; (b) because said engine or any of said cars were not equipped in any manner with brakes that could or would in any manner aid the said engineer in checking the speed of said train down said grade; and that because of the defects of said engine, as above set out and explained, same could not and did not stay upon said track at a high rate of speed, and because thereof jumped the track and turned over, or was wrecked, as above stated, with the result that the said Earnest Lee Hunt was then and there killed in said wreck."

The defendant, plaintiff in error, by its first amended answer pleaded a general denial, and for special answer first alleged that the accident which resulted in the death of the deceased was due to and proximately caused by the failure on the part of deceased to exercise ordinary care for his own safety. Next said answer alleged that —

"The plaintiff herein was the master mechanic in charge of the engines and their equipment and the crews of said engines at the time of the accident herein complained of, and that it was his duty to see that said engines were in proper condition and that said engines were in the proper state of repair; and defendant avers that, if said engine was not in proper state of repair or in proper condition to be operated upon the rails, the same was due to the negligence of plaintiff and his failure to perform his duty, and that for this reason the plaintiff is not entitled to recover herein."

Said answer further alleged that —

The defects in said engine were fully known to plaintiff, and that defendant had instructed him "not to permit the said Earnest Lee Hunt to go out on the engines; but the said plaintiff herein, without the consent of this defendant and against the instructions of this defendant, sent the said Earnest Lee Hunt out on said engine on the occasion in question, and defendant avers that said act was not the act of this defendant, but was the act of plaintiff, and that for such reason this defendant is not liable and plaintiff is not entitled to recover."

The prayer was for actual damages in the sum of $10,000 and exemplary damages in that amount. The case was submitted to a jury upon the following special issues, to wit:

"Gentlemen of the jury: This case will be submitted to you on special issues. By this is meant I will hereinafter propound to you certain questions which you will answer as you may find the facts to be from the evidence. A separate piece of paper will be furnished you on which you will answer as directed the questions hereinafter propounded. When you have answered these questions as directed, your foreman will sign the same and such answers will constitute your verdict in this case.

"For your guidance in answering the questions hereinafter propounded, I submit to you the following instructions:

"By the term `negligence' as used herein means a failure to use that degree of care which would be exercised by a person of ordinary prudence under the same or similar circumstances.

" `Contributory negligence' in law means such an act or omission on the part of the person injured amounting to a want of ordinary care as, concurring or co-operating with some negligent act or omission of the defendant, proximately causes or contributes to cause the injury complained of.

" `Proximate cause' in law means that which in natural and continuous sequence, unbroken by any new independent cause, produces the event and without which the event would not have happened.

"Keeping in mind the above and foregoing instructions, I now propound to you:

"Question No. 1. Was the defendant, the West Lumber Company, guilty of negligence in any of the particulars charged in plaintiff's petition in regard to the engine on which plaintiff's son was killed? Answer `Yes' or `No.'

"Question No. 2. Was such negligence, if any, inquired about in question No. 1, the proximate cause of the death of plaintiff's said son? Answer `Yes' or `No.'

"Question No. 3. Was the defective condition of engine No. 1, if it was defective, the result of contributory negligence on the part of the plaintiff, A. L. Hunt? Answer `Yes' or `No.'

"Question No. 4. What sum of money, if any, paid now, will fairly and justly compensate plaintiff for the loss of the pecuniary aid, if any, he had the reasonable expectation of receiving from his said son had he lived? Answer stating what amount, if any. In answering this question you will not consider any mental anguish, pain, suffering, or grief occasioned plaintiff as the result of the death of his said son.

"The burden of proof is upon the plaintiff to establish the material allegations in his petition upon which he relies for a recovery by a preponderance of the evidence. By the term `preponderance of the evidence' is meant the greater weight of credible testimony.

"You are the exclusive judges of the facts proved and the credibility of the witnesses."

Upon the verdict being returned, the court below rendered judgment in favor of defendant in error for actual damages in the sum of $5,000. Plaintiff in error seasonably filed its motion for new trial, which was by the court overruled, to which plaintiff in error duly excepted and in due time filed its bond, applied for writ of error, and the cause is now properly before this court for revision and correction of errors.

Plaintiff in error's seventh, eighth, ninth, and tenth assignments of error are as follows:

(a) "The court erred in failing and refusing to give in charge to the jury special issue No. 5 submitted by the defendant, because the same was raised by the evidence, and the defendant was entitled to have a finding thereon."

(b) "The court erred in failing and refusing to give in charge to the jury special issue No. 5 submitted by the defendant, because the pleadings of defendant and the evidence in the cause raised the issue as to whether the happening which is alleged by plaintiff to have resulted in the death of his son was the negligent act of plaintiff himself."

(c) "The court erred in failing and refusing to submit to the jury special issue No. 5 requested by the defendant, because the pleadings and the evidence raised the issue that the defective condition of the engine, as alleged by plaintiff, was due to the negligence of plaintiff with respect thereto, and defendant was entitled to have a finding upon said issue."

(d) "The court erred in refusing to give in charge to the jury special issue No. 5 submitted by defendant, because defendant had alleged that the defective condition of the locomotive upon which the son of plaintiff is alleged by plaintiff to have been killed was chargeable to plaintiff, who was responsible therefor, and the evidence shows that one of the defective conditions of said locomotive alleged by plaintiff, to wit, that the drive axles, that is, the axles underneath the engine, were crooked and bent, and the evidence showed that plaintiff had charge of and was responsible for the repair thereof, and the same had been bent for some time before the happening in which the son of plaintiff is alleged to have lost his life, and the same might have been repaired by plaintiff at any time within a day or two, and defendant was entitled to have said special issue with respect thereto determined by the jury, and the failure to submit said special issue was highly prejudicial to the rights of the defendant."

The special issue No. 5 was as follows:

"Gentlemen of the jury: At the request of the defendant the following special issue is submitted to you, to wit:

"Was or was not the death of the son of plaintiff proximately caused by the negligence of the plaintiff? You will answer the foregoing interrogatory `it was' or `it was not,' according as you find the fact to be."

The foregoing assignments will be considered together. In our opinion the court erred in refusing to give this special requested charge to the jury, and we sustain the assignments with reference to this matter.

The eighteenth, nineteenth, twentieth, and twenty-first assignments of error complain of the court's refusal to give in charge to the jury defendant's requested special issue No. 8, which is as follows:

"At the request of the defendant, the following special issue is submitted to you, to wit:

"Question No. 1. What amount did that son of plaintiff, who is alleged in plaintiff's petition to have been killed, earn per month? _____

"You will fill in the above blank with the sum which you so find."

Under the above assignments plaintiff in error advances the proposition that the measure of damages to the father for injuries resulting in the death of his minor child is the net earnings of the child over and above the amount required for the child's support, and plaintiff in error was entitled to have the basis for ascertaining this found and determined by the jury, if defendant in error is permitted to recover against plaintiff in error in the premises.

The son of defendant in error was, at the time of his death, a minor. There is no evidence in the record bearing upon the measure of damages except the testimony of defendant in error. All of his testimony upon the subject is set forth in the statement subjoined to the proposition advanced under the twenty-first, twenty-second and twenty-third assignments of error. The only reference made by the court below to the measure of damages is as follows:

"Question No. 4. What sum of money, if any, paid now, will fairly and justly compensate plaintiff for the loss of the pecuniary aid, if any, he had the reasonable expectation of receiving from his said son, had he lived? Answer stating what amount, if any. In answering this question you will not consider any mental anguish, pain, suffering, or grief occasioned plaintiff as the result of the death of his said son."

The refusal of the court to give this charge was error. With reference to this matter the plaintiff testified:

"My son Earnest L. Hunt, the young man who was killed in that wreck, was living, you might say, with me at the time he was killed. We were boarding though at that time. He was not a married man, he was with me at the time. He had been down to Milvid at work something like 30 days. I think the wages he was earning was $2.25 or $2.50, as well as I remember. I forget now just which. He had been living back near Palestine, on the Trinity river, at a place called Oakwood, in Leon county, just before he came to Milvid. Before he came to Milvid to go to work and before I came to Milvid to go to work, he had been living with me, practically all his life. He had never went away from home to a sawmill to work, or to other jobs, unless I was with him. Both go to work at the same place, except this one time. This was the only time that I had ever gone away and left him in the last four or five years. At that time I left home first. He was helping to take care of my family at that time by taking care of his two little brothers. The next one was at that time, I believe, 14; as well as I remember at that time 14; and the other one 17, I believe; 16 or 17. They were my children. During the time that he was left at home back in Leon county with them, I had come to Orange and from Orange to Milvid, accepting the position that had been offered to me. I was out of work at that time, looking for work. During that time I looked to the efforts of my son E. Lee Hunt, and he did in fact take care of my minor children. After I got my job and sent for him to come to Milvid, he brought my children there. After my two minor children and my son Earnest Lee got there, we all boarded at the same place and lived at the same place. I paid the board, I think, for all of us, as well as I remember. In regards to the way he helped in the general sustenance of the family, why he always turned in every dollar that he had; he put it in as a part of the family fund; it was his; it was mine; it belonged to any member of the family that stood in need of any money, regardless of what his need was; if it was there, it was his. During the time we lived there at Milvid I think he did contribute towards buying any of my children's clothes and other necessities; I can't say — he had only been working — that is, under the customary rule, I don't know whether he had drawn a pay day or not; not more than one, if he ever drawn that; and I am not sure that he ever drawn that, because they held them back 30 days before they ever drawn any money. * * * We were kind of companions, and in a manner kept our things together, our money together. At the time I drew every cent was subject to whatever the boy required and everything he drew was subject to what I required, subject to any necessity of the moment, regardless of whose it was. And the money that was required to maintain the children, just what he made was applied to it, and what I made was applied to it, just as was more convenient at the time. * * * I worked all the time I was there. I put in the time more regularly than the boy did as a rule. As a rule, he kept house sometimes and helped about the place. As well as I remember, I paid the board for the whole family, including the boy, at the place where I boarded. I can't just say positively about that, but as well as I remember; I know my part of the bill; I couldn't remember it in dollars and cents, but it seemed to be the biggest balance of my cash. In other words, it took more money to pay my board than anything else. The board bill amounted to more than I had left, in other words. * * * I had taken some pride, more or less, in the fact that I had learned a skilled trade and was able to take care of my family; well, I claim very little credit in that respect as a mechanic. I always been able to support my own family, as a rule. There is no reason why, if I keep my health, I will not always be able to do that; as long as I keep my health or my ability or my reasoning. * * I told Mr. Granbury that what the boy earned was his own, if he claimed it; but he had never claimed it; he left it with the family. I think I told Mr. Granbury in that conversation that I had always been able to support my own family and had always done it wholly by my own efforts, and that I always expected in the future to be able to do that; most every man does. * * * I disremember whether I told the hotel man that he must collect from the boy for his own board or not. I cannot say that I told the man with whom we boarded that the boy was his own man now, working for himself, and must pay his own board, and he, the boarding house man must collect his own board, or not; if I said such I don't remember. If I said it, I suppose I meant it; it was true."

The issue as to whether or not the deceased son of defendant in error had contributed any amount to his support was one of the sharply contested issues of fact throughout the trial. The only testimony bearing on the issue was that of defendant in error. All of his testimony on the subject is set out.

Special issue No. 11 requested by defendant below and refused by the court was as follows:

"The following special issue is submitted to you, to wit:

"Did the death of plaintiff's son result in pecuniary loss to plaintiff?

"You will answer the foregoing question `Yes' or `No,' as you find the fact to be."

Also special issue No. 12 requested by defendant below and refused by the court was as follows:

"Question No. 1. Was plaintiff financially benefited by his son up to or at the time of the death of his said son?

"Question No. 2. Would plaintiff have been pecuniarily aided by his son up to the time his son would have reached his majority?

"Answer each of the above questions `Yes' or `No,' as you may find the facts to be."

These matters should have been submitted by the court and the jury should have been permitted to answer them, and the action of the court in refusing to submit same to the jury was error.

The thirty-third, thirty-fourth, thirty-fifth, and thirty-sixth assignments complain of the remarks made by E. B. Pickett, Jr., of counsel for plaintiff, in his argument to the jury, to the effect that "Any company who would have a death trap like that (meaning the alleged defective locomotive upon which the occurrence happened in which the son of plaintiff lost his life) to coin dollars with ought to have to confess negligence," and upon objection being taken thereto by counsel for defendant, in continuing his remarks to the effect "Yes, and I expect to have more for you to except to"; and also complain of the error of the court in refusing to instruct the jury not to consider the improper remarks of counsel for plaintiff, E. B. Pickett, Jr., in argument to the jury above mentioned, and in refusing to give in charge to the jury special charge No. 14 submitted by defendant, as follows:

"You are instructed that the remarks of counsel to the effect that `Any company who would have a death trap like that to coin dollars with ought to have to confess negligence,' and after objection and exception thereto the remarks of counsel to the effect `Yes, and I expect to have some more for you to except to,' were improper remarks, and you will not consider same."

The occurrence which forms the basis of these assignments is set forth in bill of exceptions No. 4 submitted by plaintiff in error, the pertinent part of which is as follows:

"E. B. Pickett, Jr., of counsel for plaintiff, while engaged in his closing argument to the jury on the merits of the cause, made, in effect, the following statement, to wit: `Any company which would have a death trap like that (meaning the locomotive of defendant upon which the alleged injury occurred) to coin dollars with ought to have to confess negligence.' Objection was made to said statement by counsel for the defendant and exception was duly taken thereto by defendant, whereupon the said counsel for plaintiff continued his argument to the jury with the following statement, to wit, `Yes, and if you object to my discussing the facts which show negligence, then no doubt there will be more of my argument for you to except to, because the record is so full of facts which undoubtedly show negligence on the part of defendant,' to which last named statement and remarks of counsel for plaintiff in said argument defendant objected and made due exception, and counsel for defendant thereupon submitted to the court a special charge (the same being special charge No. 14 on file in the cause) instructing the jury to disregard said remarks, which special charge was by the court refused. To which action of the court in declining to sustain objection thereto, and in declining to instruct the jury not to consider or regard the same, defendant has made due exception, and here now tenders this, its bill of exception, and asks that the same be approved and ordered filed as a part of the record in this cause."

Immediately upon said improper remarks being made, counsel for plaintiff in error in a proper manner, in open court, excepted and then and there preserved their bill of exceptions, and immediately submitted to the court their special charge No. 14 above copied. This special charge was refused.

Upon meager evidence supplied by the testimony of defendant in error alone, and tending to show that the deceased son of defendant in error was and would be an expense to him rather than a pecuniary aid, the jury found such meager issues as were submitted to them all against plaintiff in error, and assessed damages against plaintiff in error and in favor of defendant in error in the sum of $5,000.

The remarks of counsel complained of were highly improper and aggravating, and should have been withdrawn from the jury's consideration by the court. Such language was calculated to prejudice the rights of defendant and to inflame the minds of the jury, and when attention was called thereto the jury should have been admonished by the court that same should not be considered and ought not to be considered in passing upon the measure of damages in this case. Too much care cannot be required in order that counsel in a case like this should not inflame the minds of the jury, because this court cannot know the peculiar effect which undoubtedly resulted in this case in assessing $5,000 damages. We make peculiar mention, as we have heretofore made with reference to remarks of counsel, in order that the trials in the courts below may be absolutely free from any improper motive; and when the jury has assessed a damage which has a tendency to show an inflamed mind, which might or might not arise from an improper motive, it is impossible for us to know what impelled the jury to do this.

But the language used by the said E. B. Pickett, Jr., and the assessment by the jury of damages in such large sum, impresses our minds with the suspicion that the remarks of counsel brought this about. It certainly had a tendency to do so.

For the errors above pointed out, this cause is reversed and remanded to the lower court for a new trial.