West Lumber Co. v. Hunt , 219 S.W. 1106 ( 1920 )

After submission of this cause in this court, its assignment for the preparation of the opinion fell to Associate Justice BROOKE, and he has prepared a written opinion, in which the conclusion is reached that the judgment of the trial court should be reversed and the cause remanded on several different grounds, the mention of which specifically is unnecessary here, but will be found in the opinion as prepared by Justice BROOKE.

We have carefully considered the opinion as prepared by Justice BROOKE, and have reached the conclusion with him that the judgment of the trial court should be reversed and the cause remanded, but not upon all the grounds upon which Justice BROOKE has placed the reversal. We agree that the seventh, eighth, ninth, and tenth assignments of error found in the brief of the plaintiff in error, all of which complain in different form and language of the action of the trial court in refusing to submit special issue No. 5 requested by plaintiff in error, should be sustained. These several assignments of error are clearly shown in the opinion prepared by Justice BROOKE, and there is no necessity for further elucidating them here.

Special issue No. 5, which the court refused to submit, for the jury's answer, at the request of plaintiff in error, was as follows:

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

In the opinion of Justice BROOKE it is clearly stated that the refusal of the trial court to submit this special issue was error for which the judgment should be reversed, but Justice BROOKE did not let his opinion reflect the reason for so concluding. As we understand the contention of the plaintiff in this case (defendant in error here), one of the main grounds of negligence relied upon for recovery against the defendant below was the fact, as alleged by the plaintiff, that the drive axles of the engine upon which plaintiff's son met his death "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." Of course, as shown by the opinion of Justice BROOKE, there were several other grounds of negligence charged in plaintiff's petition; but this we say was one of the main grounds of negligence alleged to be the proximate cause of the death of plaintiff's son. Now, defendant, after a general denial of all the grounds of negligence as contained in plaintiff's petition, specially alleged, substantially, that if the drive axles of the engine were bent and crooked and out of repair, as alleged by the plaintiff, and if such condition of the axle was the proximate cause of plaintiff's son's injury and death, that then, substantially, such condition of the drive axles was the result of negligence on the part of plaintiff in this case, who was the master mechanic on defendant's yard, and whose duty it was to see that the axles on the engine, and for that matter it was his duty to see that the entire engine was kept in proper repair, and that, if he failed to do so, such negligent failure on his part resulted in the death of his son, and that he should not, therefore, be permitted to recover against defendant.

The court, as will be seen from the opinion prepared by Justice BROOKE, submitted to the jury in one question whether or not defendant was guilty of negligence in any respect, as alleged by the plaintiff, and the jury answered "Yes" to this general issue or question. Then the court, by the second question propounded to the jury, inquired whether or not such negligence, if any, was the proximate cause of the son's death, and to this general issue or question the jury answered "Yes." It will be seen from the issues submitted in the court's charge that he nowhere nor in any manner affirmatively submitted to the jury the question or issue whether the son's death was caused by negligence on the part of plaintiff himself, and the evidence, as we see it in the record, and as we hold, having raised such issue, it was the right of plaintiff in error to have such defensive issue affirmatively presented for the jury's consideration and decision, and since the court's main charge failed to so submit such issue, then it was plaintiff in error's privilege and legal right to prepare and request the court to submit such issue, which plaintiff in error did, and the request was refused by the court.

Now, counsel for defendant in error, by a counter proposition contained in his brief, seeks to uphold the action of the trial court in so refusing to submit such requested issue, for the reason, as suggested by counsel, that the special issue No. 5 as framed assumed that defendant in error was guilty of negligence, and only left to the determination of the jury whether such assumed negligence became a proximate cause of the son's death. We have just above copied the requested issue now in question, and, without determining whether the criticism made of same by counsel for defendant in error be correct, we have concluded that the issue as framed and requested was certainly sufficient to call the trial court's attention to the issue that plaintiff in error was seeking to have submitted, and since the pleading and the evidence justified the submission of a properly framed issue on the point, it became the duty of the trial judge to either submit the issue properly in his own charge, or so reframe the issue as requested by plaintiff in error as to make it correct, and then submit it to the jury. This rule we understand to be correctly announced in the case of Olds Motor Works v. Churchill, 175 S.W. 787. From the opinion in that case we quote:

"When the court fails to charge on a material issue, and a special charge is requested, though incorrect, but sufficient to call the court's attention to the omission, the court should submit a proper instruction on that issue; and if proper exception is taken to such failure of the court, and * * * assignment be presented, both in the motion for new trial in the court below and in appellant's brief, he may successfully urge the error of omission in the appellate court. But when the court has submitted a correct general presentation of the issue, if either party desires a fuller charge on that issue, he must tender to the court a correct charge, and, upon a failure to do so, he cannot avail himself of the court's omission."

The principle announced in the quotation just above is clearly applicable here. See, also, Roberts v. Houston Motor Car Co., 188 S.W. 259; Brady v. McCuistion, 210 S.W. 815.

It is true the record in this case discloses the fact that the trial court submitted to the jury for its determination whether or not the defendant in error here was guilty of contributory negligence which proximately caused his son's death, and it is also true that the jury determined that issue in the negative. As we view the plaintiff in error's answer in this case, upon which the cause proceeded to trial, there was no plea of contributory negligence, and for that reason there was no basis for the submission of the issue of contributory negligence, as the defendant would not have been entitled to the submission of any such issue, in the absence of a plea of contributory negligence. But, however that may be, the unauthorized or improper submission of the issue of contributory negligence by the court, and its existence being negatived by the answer of the Jury, could not, we think, have the effect to deprive the plaintiff in error of the right to have the vital defensive issue submitted as to whether the negligence of the plaintiff himself, without any negligence on the part of the defendant, was a proximate cause of his son's death. We therefore conclude that the error of the trial court in refusing to submit special issue No. 5, as above shown, was error for which the judgment should be reversed.

We next pass to the assignment of error complaining that the verdict and judgment in favor of plaintiff below is excessive. The record shows, without dispute, that the plaintiff's son, at the time of his injury and death, was approximately 20 years and 10 months of age; in other words, that he would have reached his majority in about 60 days from the date of his death. The record further shows that the deceased son did not have regularly any outside employment, but that when he was last employed, outside of duties performed in the household, he made from $2 to $2.50 per day; that he was a faithful and reliable boy in his father's family, and rendered valuable services in attending to matters pertaining to the household and taking care of other children younger than himself; but there is little testimony, if any, to indicate that his earnings in any capacity were largely in excess of the expense to his father of his maintenance. That he was an obedient, kind, and affectionate son is beyond question, however, and if any element of recovery could properly enter into this case, other than that of pecuniary loss to his father, we would hesitate to conclude that the verdict and judgment were excessive. Under the common law, the father would be entitled in this case to the value of the services of the deceased, whatever such value would have been, up to the time the son would have reached his majority, all of which would be a question for determination by the jury upon evidence adduced in that connection; and in addition to that, by reason of the statute of this state, the father would also be entitled to recover the value of such contributions or aid of a pecuniary nature as he had a reasonable expectation of receiving from the son after reaching his majority had he lived. But the amount of this element of recovery, however, would have to be arrived at and based upon evidence before the jury, and could not properly be left to their determination upon mere surmise or speculation. Now, as stated before, the boy would have reached his majority in approximately 60 days from the accident. At the time of his death, and at the time of the trial in this case, the proof shows that the father was a skilled mechanic between 45 and 47 years of age, and earning a good salary, in robust health and strength, and he testified that he had always made a proper support for his family, and was doing so at the time of the son's death, and that he had no reason to believe that he would be unable to continue to do so. The proof shows further, that the father has two other sons, aged approximately 14 and 17 years, respectively. There was no proof on the trial below showing or tending to show that the deceased had made any promise to consecrate himself to his father, or that he would support or contribute to the support of his father or family, after reaching his majority, and there is nothing in this record, other than the fact that the boy was a dutiful and obedient and affectionate son, to warrant a conclusion that the son would have continued to contribute anything to his father after reaching majority, and the verdict of the jury in favor of defendant in error for the sum of $5,000 must be based alone, we think, upon evidence to the effect that the relation of father and son existed, and that their relations were affectionate, and that the son was considerate of and obedient to the father, and considerate of his brothers and sisters. We say that these facts alone must constitute the basis for the jury's verdict in the sum of $5,000.

In the brief of counsel for defendant in error we have not been cited to a single case which, in our opinion, would be authority for upholding the amount of the verdict in this case. No useful purpose would be subserved by discussing them, for, as is usually the case, the excessiveness vel non of a verdict depends upon the facts in each particular case, and we think that none of the authorities relied upon for upholding this verdict are based upon facts similar to those in this record. We are not unmindful, however, that questions of this kind are necessarily addressed largely to the sound judgment and discretion of the jury, because in the very nature of things it would be impossible to establish by evidence with mathematical certainty what amount of money or contributions having a pecuniary value the parent, in cases of this character, would have a reasonable expectation of receiving from the child, had he lived, and yet we also know, as has been frequently determined by the appellate courts of this state, that the verdict of a jury on such issue must have a reasonable and substantial basis in the evidence, and that a jury cannot be permitted to speculate or merely surmise in determining such issue, and, as we view the record in this case, that is what the jury has done in reaching a verdict in favor of defendant in error for $5,000. We hold that the assignment challenging the verdict and judgment as being excessive ought to be sustained. But, since the judgment must be reversed and the cause remanded upon other grounds, as we have indicated, and in view of the probability of another trial, we deem it proper not to suggest the extent to which the verdict, in our opinion, is excessive upon the facts as they now appear in the record, and withhold any opinion that we may entertain at this time upon that point.

We deem it not improper to say that we do not concur with Justice BROOKE in the conclusion reached by him that the remarks of counsel for defendant in error in his closing argument to the jury in this case would be sufficient of themselves to cause a reversal of this judgment, but we do agree that the remarks complained of, which are fully shown in the opinion prepared by Justice BROOKE, were hardly justified by anything shown in the record in this case, and that upon another trial such remarks or similar ones should not be made.

We have carefully considered all other assignments of error contained in the brief of plaintiff in error, and have concluded, without discussing them, that none of them point out anything prejudicial to the rights of plaintiff in error, and they are overruled.