387 F2d 602 Kansas City Southern Railway Company v. Caruso

387 F.2d 602

Mrs. Sam CARUSO, Jr., et al., Appellees.

No. 24690.

United States Court of Appeals Fifth Circuit.

January 10, 1968.

Howell Cobb, Beaumont, Tex., for appellant.

Ward Stephenson, Orange, Tex., for appellees.

Before TUTTLE and GEWIN, Circuit Judges, and HUNTER, District Judge.


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This was a damage suit brought by the widow and parents of Sam Caruso, Jr., for damages they respectively sustained as a result of his death caused by a car-train collision on August 28, 1965. The jury made a verdict in favor of the widow for $30,000.00 and a verdict in favor of the parents of $5,000.00. The court made an additional award of $5,114.38, to the parents for medical, hospital and funeral bills. The appeal attacks only the awards to the parents.


The evidence is clear that, after his marriage, Sam Caruso, Jr., had not made any financial contribution to his parents. On the other hand, there was ample evidence to support the jury's finding that in all reason the parents could expect financial benefits from the continuing in life of their son, especially in light of the testimony that plans had been at least tentatively made for the father and son entering into business together. This satisfies the Texas decisions entitling the parents to a recovery even after the son is an adult and is married. With respect to the judgment for out of pocket expenses, the amount of these was stipulated and in light of the stipulation and in light of the liberal rules of federal pleading, we find no error in the entry of judgment for this amount in favor of the appellees.


The issue as to the propriety of the cost bill taxed against the appellant was not raised before the trial court. This record is devoid of the facts necessary for us to determine whether the witness fees were proper or not. The point not having been raised in the trial court, there is nothing by which we can properly overturn that court's judgment with respect to the costs.


The judgment is affirmed.