Hines v. Walker , 225 S.W. 837 ( 1920 )

Upon further consideration, I conclude that the error assigned, and for which on original hearing we reversed the judgment and remanded the cause, is harmless, and did not probably mislead the jury. The three children were awarded a judgment for $10,000. One child was about 8 years old, one 6, and the other 3 at the time of their father's death. The three children would have reached their majority in 13, 15, and 18 years, respectively. The total period of minority would have amounted to 46 years. The amount awarded to the children would have given each child an average of some $217 a year during its minority. There was no pleading nor proof that the children had any reasonable expectation of receiving any financial aid or other pecuniary benefit after they should reach their respective majorities. The special issue complained of limits the finding of the jury to an award which the evidence may show the children, and widow, would have received from the deceased had he lived. Under rule 62a (149 S.W. x), we would not be justified in reversing the judgment unless we were of the opinion that the defendant had been deprived of some which was reasonably calculated to, and probably did, cause the rendition of an improper judgment. Wells Fargo Co. v. Benjamin, 165 S.W. 121; T. B. V. Ry. Co. v. Voss, 160 S.W. 666. But it is urged that this case is one involving interstate commerce, and is not controlled by rule 62a, but is controlled by federal statutes and decisions. This is undoubtedly true, but as I understand the rule laid down by the United States Supreme Court, the courts will not reverse a case for an error where it affirmatively appears that no injury resulted to appellant by reason of such error. Deery v. Gray, 5 Wall. 807,18 L.Ed. 653; Smith v. Shoemaker, 17 Wall. 639, 21 L.Ed. 717; Vicksburg, etc., Ry. Co. v. O'Brien, 119 U.S. 103, 7 Sup.Ct. 172, 30 L.Ed. 299; Boston, etc., Ry. Co. v. O'Rielly, 158 U.S. 337,15 Sup.Ct. 830, 39 L.Ed. 1006. Under this rule, I do not think a reversal should be granted. The deceased was a young man, able-bodied and industrious, kind and loving to his family. He gave his wife practically all his earnings, to be spent for the support of the family. The year before his death he earned practically $1,900. He had been promoted to the position of engineer, with increased pay, though at the time of his death, on account of scarcity of work he was serving as a fireman. His wife stated that he never spent on himself to exceed $40 to $50 a month. Then he gave to his family something like $1,350 a year. In the judgment, the wife got as much as the three children. Six hundred and seventy-five dollars a year then may reasonably be considered as the amount of money the children would have received from their father, even at the wages he was receiving when he was killed. The jury allowed them $652. Evidently the jury did not go beyond the evidence and allow the children any amount to cover the time after their majority.

In my opinion, the motion for rehearing should be granted, and the assignment overruled, and the judgment affirmed.