Davis v. Gillin

McHaney, J. Appellee, as administrator of the estate of his six-year-old son, Michael Joseph Gillin, sued appellants for the death of his son, caused by being run over by a truck owned by appellant, Johnson, but operated in the business of Johnson by appellant Davis. The accident occurred at 11th and Pike Avenue in North Little Bock, and it is conceded, under such circumstances shown in evidence, as to support the jury’s finding of negligence on the part of Davis in the operation of the truck. Trial resulted in a verdict and judgment for $12,500. For a reversal of the judgment, it is first argued that the court erred in giving appellee’s instruction No. 7 on the measure of damages. This instruction, after enumerating various elements of damage which the jury might consider, concludes as follows: “And also for the loss of such sum of money which you may find from the evidence Michael Joseph Gillin, deceased, after he reached his majority, would have contributed to his father or mother during their lifetime, if any. ’ ’ This part of the instruction was objected to specifically, because it permitted a recovery for contributions the infant might make to both the father and mother after he became of age. The court erred in giving said instruction with that clause in it. In Railway Co. v. Davis, 55 Ark. 462, 18 S. W. 628, this court held that: “In estimating the ‘pecuniary injuries’ of a father as next of kin, resulting from the death of a minor son eighteen years old, caused by another’s negligence, * * * the jury are not bound to confine their consideration to the son’s minority, but may take into account the father’s expectation of pecuniary benefit from the continuance of the son’s life after his majority, where he hadmanifested an intent to aid his father after that time.” Syllabus. But the court further said: “When confined to the case of a child of such tender years as- to be unable to maintain itself beyond the parental roof, the argument (that there can be no recovery for contributions after majority) is doubtless sound. It seems to have received the sanction to that extent of this court in two cases which arose under the act of 1875, which, so far as the award of damages in a case like this goes, the court assimilated in those cases to acts like Lord Campbell’s. But, in each of those cases, the child killed was an infant of such tender years that it was incapable of rendering any service or of affording evidence of an intent to render pecuniary aid after majority to its parents. The cases are not authority therefore upon the question in hand. Little Rock, etc., R. Co. v. Barker, 33 Ark. 350; St. L., etc., R. Co. v. Freeman, 36 Ark. 41.” In the more recent ease of Interurban Ry. Co. v. Trainer, 150 Ark. 19, 233 S. W. 816, this court held that probable contributions of a girl eleven years of age to her parents after her majority could not be considered, the court saying : ‘ ‘ She had not reached the age where she had shown herself ‘able and willing to make her own living and to contribute out of her earnings to the support of her parents. ’ Therefore, a recovery for probable future pecuniary contributions to them beyond her minority could not be taken into consideration.” The holding in Ry. Co. v. Davis, supra; Memphis, D. & G. Rd. Co. v. Buckley, 99 Ark. 422, 138 S. W. 965; and St. L., I. M. & S. R. Co. v. Jacks, 105 Ark. 347, 151 S. W. 706, that probable future contributions after majority might be considered, was discussed in the Trainer case, where the court said: ‘ ‘ The reason for this holding is bottomed expressly upon the testimony in each of the cases showing that the minor was able and willing to make his own living, and to contribute out of his earnings to the support of his parents. In the last two cases the minors were contributing all their earnings — quite substantial sums — to their parents, and expected to continue to support them as long as they lived. But there is no testimony in this record to warrant an inference that there would be any pecuniary benefit to the parents of this child beyond her minority, and the rule as announced in Little Rock & F. S. R. Co. v. Barker and St. L., I. M. & S. R. Co. v. Freeman, supra, must govern.” We think this case in this respect is ruled by those above cited. The little boy was only six years of age, unable to earn anything or to maintain himself beyond the parental roof, and, while he expressed himself as intending to help his parents, the facts do not bring the case within the rule announced in the Davis, Buckley and Jacks oases. The court therefore erred in giving said instruction, but the error does not necessarily call for a reversal. This question will be further discussed in connection with another assignment of error. It is said the verdict is excessive. We agree with, appellant in this contention. The child was struck by a heavy truck, and the rear wheel passed over the child’s body and head. It received a crushing injury to the skull, a fracture at the base of the skull, and other severe and deathly injuries, from which it died a short time afterwards. It was taken to the hospital, but was dead when examined. The physician said it could not have suffered any conscious pain. There was other evidence tending to show some possible conscious suffering, and we are unwilling to say there is no substantial evidence that it did consciously suffer. The jury has evidently found that it did, from the size of the verdict, but the evidence thereof is so uncertain and weak that we are unwilling to sustain it for the full amount. We think we can cure the error in instruction No. 7, heretofore discussed, by limiting recovery for probable pecuniary contributions to such as might have been made during minority and limit them to $2,500 under the rule stated in Morel v. Lee, 182 Ark. 985, 33 S. W. (2d) 1110. We are also of the opinion that $2,500 for pain and suffering is the maximum substantially supported by the evidence. Other questions are argued in the briefs, but we think these are the only ones to be discussed in view of the disposition of the case. If the appellee will, within fifteen judicial days from this date, enter a remittitur down to the sum herein indicated, the judgment will be affirmed. Otherwise the cause will be reversed, and remanded for a new trial.