International & G. N. R. Co. v. McDonald

• Decision Date: 05 November 1889
• Citation: 12 S.W. 860
• Parties: INTERNATIONAL & G. N. R. CO. <I>v.</I> McDONALD <I>et al.</I>
• Court: Texas Supreme Court

12 S.W. 860

INTERNATIONAL & G. N. R. CO.v.

McDONALD et al.

Supreme Court of Texas.

November 5, 1889.

Commissioners' decision. Appeal from district court, Williamson county.

Maxey & Fisher, for appellant. A. S. Fisher and W. M. Key, for appellees.

ACKER, P. J.

Mrs. Mary McDonald brought this suit for herself, and as next friend of her minor children, Susan, Sallie, Alexander, Durham, John, and Lee McDonald, against the International & Great Northern Railroad Company, to recover $15,000 actual, and $10,000 exemplary, damages, for the death of Dr. McDonald, husband of Mrs. Mary McDonald, and father of the other plaintiffs. Dr. McDonald was killed by a locomotive on defendant's road in June, 1886, and plaintiffs alleged that his death was caused "through the willful and wanton acts and gross negligence of defendant in operating and running its freight engines and cars." Defendant answered by general denial, and pleaded contributory negligence on the part of deceased. By trial amendment, plaintiffs claimed actual damages as follows: Mrs. McDonald, $7,500; Sallie, $1,000; Alexander, $1,000; Lee, $1,000; Durham, $1,500; John, $1,500; Susan, $1,500, — and asked that the exemplary damages be partitioned among them in the same proportion. The jury returned a verdict for $15,000 actual and $2,500 exemplary damages, apportioned as follows: Mrs. McDonald, $5,000 actual and $350 exemplary; Sallie, $1,400 actual and $350 exemplary; Alexander, $1,400 actual and $350 exemplary; Lee, $1,550 actual and $350 exemplary; Durham, $1,550 actual and $350 exemplary; John, $2,000 actual and $350 exemplary; Susan, $2,100 actual and $400 exemplary. Judgment was rendered in accordance with the verdict. This action was brought under the following provisions of our Revised Statutes: "Art. 2899. An action for actual damages, on account of injuries causing the death of any person, may be brought in the following cases: (1) When the death of any person is caused by the negligence or carelessness of the proprietor, owner, chatterer, or hirer of any railroad, steam-boat, stage-coach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, gross negligence, or carelessness of their servants or agents." (This article was amended by the twentieth legislature so as to omit the word "gross." Laws 1887, p. 44.) "Art. 2901. When the death is caused by the willful act or omission or gross negligence of the defendant, exemplary, as well as actual, damages may be recovered." The court gave the following charge to the jury: "If the jury find for the plaintiff, and further find that the act of killing the deceased was gross negligence on the part of the defendant, then they will further find exemplary damages, to be apportioned by the jury among the plaintiffs."

It is contended that this charge is erroneous, because exemplary damages cannot be recovered in this case. Our state constitution (section 26, art. 16) requires that the death be caused by the willful act or omission or gross neglect of the person, corporation, or company, before the liability for exemplary damages arises. We think the language of the statute admits of but one construction. The action is given for actual damages alone, and, where there is no evidence tending to show that the death was occasioned by the willful act or omission or gross negligence of defendant company, acting by and through its corporate officers, exemplary damages cannot be recovered. It is not claimed by appellees that Dr. McDonald's death was caused by the willful act or omission or gross negligence of the defendant, or that it was caused at all by the negligence or carelessness of the proprietor of the road. There was no evidence that any corporate officer of defendant company was in any way connected with the killing, or that such officer was even present. Under the law as it existed at the time Dr. McDonald was killed, to make the defendant liable for actual damages, resulting from the death occasioned by the acts of the servants or agents of the corporation, it must be shown by the evidence that such servants or agents were unfit for the duties they were employed to perform, or that the death was occasioned by the gross negligence or carelessness of such servants or agents. In the case of Railroad Co. v. Cowser, 57 Tex. 306, the supreme court uses the following language: "The statute clearly draws the distinction between an act done by the proprietor, owner, charterer, or hirer of a railroad, and one by their servants or agents, and also between actual and exemplary damages. In our opinion, under its proper construction, although actual damages may be given for death caused by the...