The opinion
On Motion for Rehearing.
[18] Appellant, by written argument, in support of its motion for rehearing, assails the ¿etion of this court in overruling assignment No. 11, which is based on the admission of Mrs. Brown’s testimony to the effect that she and deceased did not own any property at the time he was killed. In addition to the testimony objected to she testified the deceased provided “good and well” for her, and that she did not “want for anything at all.” He received an average salary of $125 to $140 per month, and that there was no one else dependent on him other than herself, and that he contributed to her all of his salary needed by her. Some months they would use all of his salary. “That they were wholly dependent on his salary.” The deceased helped her in her housework, and when at home, etc. We can see but little difference between *288 her testimony that they “did not own any property at the time he was killed” and the statement “that they were wholly dependent on his salary.” The latter statement substantially includes the former. To the latter statement no objection was lodged. If the evidence objected to should have been excluded, its admission was harmless, as substantially the same evidence was before the jury without objection. In its argument, appellant cites quite a number of cases in which the courts have held that the poverty of the litigant was not admissible. In most of the cases cited such testimony clearly was not admissible under the issues therein, and could have had but the effect either to prejudice the jury against the opposite party, or to arouse sympathy for the party in whose interest it was given. Such is not the purpose of the evidence in this case.
The Court of Civil Appeals, in the case of Railway Co. v. Gormley, 35 S. W. 488 , and this court, cited the case of Railway Co. v. Lehmberg, 75 Tex. 68 , 12 S. W. 838 , as .authority sustaining the action of the court in admitting the testimony of which complaint is made. Appellant asserts the Lehm-berg Case is in no way applicable, and does not support the action of the court in the admission of the testimony. We must differ with appellant. In that case the Supreme Court said:
“Every parent and husband has, for his wife and children, a pecuniary value beyond the amount of liis earnings by his labor or vocation. That value may, to some but not to every extent, be susceptible of allegation and proof, and to the extent that it can be alleged and proved it ought to be done. The difficulties of proof are known to the lawmaker. * * * When no amount is'fixed by law and no rule is prescribed for making the calculation upon facts capable of exact ascertainment, it necessarily follows, we think, that the lawmaker intended that, having reference as far as practicable to conditions existing at the time of death, juries from their own knowledge, experience, and sense of justice should fix and assess the proper sum.”
That court, quoting from a New York case, ased in part the following language:
“They [the jury] must be satisfied that pecuniary injury resulted. If so satisfied, they are at liberty to allow them from whatever source they actually proceeded which could produce them. If they are satisfied from the history of the family or the intrinsic probabilities of the case that they were sustained by the loss of bodily care * * * they are at liberty to allow it”
At the time of the death of the deceased, he and his wife had no property but relied alone upon his wages for support and sustenance. He and his wages were all the wife had to lean upon for support. These were the conditions at the time of his death. This support was lost. What was her pecuniary loss? He Rad life expectancy, according to the testimony, of 26 years, and was then getting $125 to $140 per month, and his efficiency in his vocation under railroad management indicated advancement. If this support was cut off, and there was nothing else to supply it, we see no reason why a jury should not have this condition and history existing at the time of his death as a means by which they might calculate pecuniary loss to Mrs. Brown in the death of her husband.
In the case of Railway Co. v. Johnson, 99 Tex. 337 , 90 S. W. 164 , our Supreme Court recognized the admissibility of testimony of the character here objected to in cases of this kind. While distinguishing the case then in hand from the class where the rule admitting the testimony is applicable, the court said:
“The decisions relied on to sustain this ruling were made in cases in which the plaintiffs sued for damages resulting from the death of relatives in which their rights of * * * damages consisted of the value of pecuniary benefits or contributions which they would have received from the deceased had they lived; and evidence of the necessity for such help arising from the poverty of the plaintiffs tended to show the probability that it would have been extended.”
Under this proposition the court cites cases supporting it. There is no injury shown by the admission of the evidence complained of, even if it was inadmissible under the rules of law.
It is also strenuously urged that the argument made in the trial court by appellee’s counsel should reverse this case. In our original opinion we held the argument improper. The amount of the verdict does not indicate to our minds prejudice or passion on the part of the jury. The verdict we cannot say is excessive in amount, and therefore do not feel warranted in presuming that the argument did arouse passion and prejudice in the mind of the jury, especially after the trial court had instructed them that the argument was improper. That attorneys will indulge in improper argument when they know they ought not is one of the ps3>chological phenomena not yet explained, but they do, as the courts and the profession know. If courts gave heed to all the complaints made to arguments by attorneys, more cases would be reversed than are. The courts doubtless to some extent take cognizance of this peculiar weakness in our profession, and, when no injury is shown, admonish the attorney rather than punish the client, who would be the sufferer if the case be reversed because of the improper arguments, frequently made, on account of the temperamental inability to refrain from taking a fling rather than a deliberate purpose to violate the rules. No reason has been presented in the motion for rehearing inducing ns to change our views on this case.
The motion for rehearing is overruled.