Abilene Gas & Electric Co. v. Thomas

• Decision Date: 24 April 1919
• Docket Number: (No. 965.)
• Citation: 211 S.W. 600
• Parties: ABILENE GAS & ELECTRIC CO. v. THOMAS et al.
• Court: Texas Court of Appeals

211 S.W. 600

ABILENE GAS & ELECTRIC CO. v. THOMAS et al.

(No. 965.)

Court of Civil Appeals of Texas. El Paso.

April 24, 1919.

Error from District Court, Taylor County; Joe Burkett, Judge.

Suit by Mattie Thomas, for herself and as next friend of her minor children, against the Abilene Gas & Electric Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

J. M. Wagstaff and Cunningham & Oliver, all of Abilene, for plaintiff in error.

Dallas Scarborough, of Abilene, Preston Martin, of Weatherford, and R. L. Carlock, Jr., of Ft. Worth, for defendants in error.

HIGGINS, J.

Mattie Thomas, for herself and as next friend for her minor children, brought this suit against appellant to recover damages resulting from an alleged negligent killing of A. J. Thomas, the husband of said Mattie Thomas and father of the minor children.

The circumstances surrounding the death of A. J. Thomas are disclosed by the opinion rendered in Abilene Gas & Electric Co. v. Thomas, 198 S. W. 1028. The statement there made is here adopted and is as follows:

The evidence shows that the plaintiff in error had constructed and begun to operate a high-tension electric wire from Abilene to Merkel, on September 3, 1915. The line carried from 33,000 to 35,000 volts of electricity. The wires were suspended upon poles 150 feet apart. Witnesses who testified in behalf of plaintiff in error indicated a proper installation and construction of the line with suitable material, with exception to be hereinafter noted. On the night of the day mentioned, to wit, September 3d, the line was tested and the current turned on, and no defect in the line was apparent between Merkel and Abilene. On that night, however, Mrs. Mattie Thomas, together with her husband and a son and daughter, camped at Elm creek about four miles west of Abilene on their way to Merkel. During the night, about 4 o'clock a. m. the husband and wife were awakened by a "popping," "sizzling" noise, which, on the following morning, was found to proceed from a broken wire of the electric line. The family had camped near the side of the road convenient to a watering place in Elm creek, and the broken line was near the camping place. The agitation of the line had ceased when discovered in the morning, but soon afterwards a milch cow accompanying the Thomases crossed over the line of the broken wire and was shocked so that she fell to the ground, and Mr. Thomas called for an axe, with which he chopped the wire in two, and thus released the cow. Later in the morning, after the preparation and consumption of the morning meal, the son and daughter each rode a horse to and from the watering place along some paths which extended on either side of one of the poles from which the broken wire depended. The little son passed upon one side and the daughter upon the other. The wire at this time was hanging down towards the ground without agitation or noise, and neither the son nor the daughter nor the horses ridden by them were injured. A few minutes thereafter Mr. Thomas, who had gone to the watering place to drive one of the work horses up, also came along one of the same paths. The boy and his mother, according to their testimony, were looking at him at the time. Mr. Thomas had a stick in his hand. As the horse came opposite the post from which the wire extended it was seen to strike the horse on the shoulder, producing a flash of fire, and resulting in the immediate fall and death of the horse. Mr. Thomas, by the testimony referred to, was seen to strike at the wire, either in an effort to knock the wire from his horse, or to ward it away from his own person. However this was, the wire flew from the horse and struck Mr. Thomas, Who likewise instantly fell dead to the ground.

The case was tried before a jury and submitted upon special issues. The issues and answers are as follows:

"No. 1. Was it, or not, negligence on the part of the defendant not to have installed in its power plant, on its line between Abilene and Merkel, at and prior to the time of the happening of the accident to the deceased, an instrumentality or device, testified about by the witnesses, known as an automatic circuit breaker? Answer, Yes.

"No. 2. If there had been an automatic circuit breaker in use on its line or at its power house at and just prior to said accident, would the said accident have occurred to the deceased? Answer, No.

"No. 3. State whether or not the absence of an automatic circuit breaker on the defendant's line proximately contributed to cause the accident to occur to the deceased. Answer, Yes.

"No. 4. Could the defendant, in the exercise of ordinary care, have discovered that the wire on its line had broken near where the deceased had camped in time to have remedied and removed the said danger before the accident occurred to the said Thomas? Answer, Yes.

"No. 5. If you have answered `Yes' in reply to the preceding special issue, then answer, Was it, or not, negligence on the part of the defendant to fail to make said inspection? Answer, Yes.

"No. 6. If you have answered `Yes' in reply to the preceding two special issues, then state whether the failure, on the part of the defendant, to make such inspection, if you have found there was a failure, proximately contributed to cause the said accident to occur. Answer, Yes.

"No. 7. Was the deceased, at and just before the happening of the said accident to him, guilty of contributory negligence, in approaching or putting himself in a position to receive a shock from the broken electric wire of the defendant, at and just before the said accident occurred? Answer, No."

The jury further assessed the damages at $8,000, and apportioned same between the mother and children. Judgment was accordingly rendered.

Opinion.

Plaintiff in error by its first assignment complains of the overruling of a plea in abatement interposed by it. The pertinent facts in connection with this plea are as follows: The present suit is numbered 3553. In the original petition Mrs. Thomas sought to recover for herself and children the sum of $55,000 as damages sustained by them through the negligent killing of her husband and for herself, the further sum of $10,000 damages for personal injuries sustained by her in coming in contact with the broken line when she went to her husband's aid and dragged his body out of danger.

In the original answer filed by defendant a special exception was leveled against the petition as follows:

"Defendant further excepts specially to the plaintiff's petition for the reason that it contains a misjoinder of causes of action in this; The plaintiff seeks to recover for injuries to her husband which resulted in his death, and also seeks to recover for alleged injuries to her personally, the petition showing upon its face that the acts for which she seeks to recover for the death of her husband and the acts for which she seeks to recover for injuries to herself are different transactions, and cannot in law be joined in the same suit."

This exception, it seems, was never formally presented to and acted upon by the court, but when it came to the attention of the attorney for plaintiffs he discussed the same with the trial court, and, being of the opinion that the exception was well taken, obtained leave to amend, and filed an amended petition by which recovery by Mrs. Thomas was sought only for the damages caused by the death of her husband. She then filed another suit, No. 3641, wherein she sought to recover the damages which she had sustained by reason of her own personal injuries. Cause No. 3641 was prosecuted to a successful conclusion, she having recovered damages in the sum of $1,000, which was affirmed on appeal. 198 S. W. 1028.

Plaintiff in error asserts that the proceedings in cause No. 3641 preclude the maintenance by Mrs. Thomas of the present suit to recover the damages which she has sustained by the death of the husband, and that the plea in abatement should have been sustained; this proposition being presented:

"Where a plaintiff institutes a suit against a defendant on account of alleged acts of negligence, and divides his damages and seeks to recover therein only a portion of same, which suit he prosecutes to judgment, he cannot in a separate suit recover the remainder, or another portion of his damages, arising by reason of the same acts of negligence or same tort that is alleged in the first suit."

The authorities cited are inapplicable. They refer to cases where...