Armstrong v. Marshall

• Decision Date: 27 November 1940
• Docket Number: No. 8974.,8974.
• Citation: 146 S.W.2d 250
• Parties: ARMSTRONG et ux. v. MARSHALL.
• Court: Texas Court of Appeals

Page 250

146 S.W.2d 250

ARMSTRONG et ux. v. MARSHALL.

No. 8974.

Court of Civil Appeals of Texas. Austin.

November 27, 1940.

Rehearing Denied December 31, 1940.

Appeal from Judicial District Court, Travis County, Ninety-eighth District; Graham Gillis, Judge.

Suit by Bill Armstrong and wife against Bob L. Marshall for alleged wrongful killing of plaintiffs' son, Walter Armstrong. From a judgment for defendant, upon a special issue verdict, the plaintiffs appeal.

Affirmed.

W. C. Huffaker, Jr., of Tahoka, and Nelson & Brown and Geo. W. McCleskey, all of Lubbock, for appellants.

Bauknight & Mann and J. Byron Brown, all of Austin, for appellee.

McCLENDON, Chief Justice.

Bill Armstrong and wife sued Bob L. Marshall for damages caused by the alleged wrongful killing of their son Walter Armstrong. They sued both as parents and as sole heirs at law of deceased. The damages claimed were: $8,000, loss of financial support; $5,000, mental and physical pain suffered by deceased prior to his death; and $343, burial expenses, itemized as funeral ($198), cemetery lot ($90), and tombstone ($55). Marshall plead self-defense. The judgment, upon a special issue verdict, was in favor of Marshall, and Mr. and Mrs. Armstrong have appealed.

Appellants' brief contains seven assignments of error, which, however, present but two grounds for reversal:

1. Asserted incompetence of Marshall under R.C.S. Art. 3716 to testify in his own defense to conversations and transactions with deceased prior to and at the time of the killing.

2. Asserted insufficiency of the plea of self-defense to authorize (a) evidence, (b) submission of issues, and (c) judgment thereon.

As to the first ground it suffices to say that if the statute is applicable the admitted testimony clearly came within its inhibitions.

In so far as the suit was for loss of future contribution to appellants' support, the statute has no application, and appellee's testimony was admissible. Wallace v. Stevens, 74 Tex. 559, 12 S.W. 283.

In so far as the suit was for damages accruing to the estate of deceased, the language of the statute clearly applies, and the testimony was inadmissible.

The question then arises whether, being inadmissible as to the latter branch of the suit it should have been excluded altogether. This question depends upon the severability vel non of appellants' action as parents for prospective contribution to their support, on the one hand, from their action as heirs for damages recoverable by deceased's estate, on the other.

There are many reported cases dealing with severability as applied to this statute; and efforts to reconcile them have not met so far with general satisfaction. The leading case upon the subject is Spencer v. Schell, 107 Tex. 44, 173 S.W. 867, holding nonseverable an action upon a promissory note by the surviving wife in the dual capacity of owner in her own community right of a half undivided interest in the note, and as owner of the other half interest as heir of her husband. The opinion cites with apparent approval and distinguishes the cases of Harris v. Warlick, Tex.Civ.App., 42 S.W. 356; Field v. Field, 39 Tex.Civ.App. 1, 87 S.W. 726, and Evans v. Scott, Tex.Civ.App., 97 S.W. 116.

In King v. Morris, Tex.Com.App., 1 S.W. 2d 605, the suit was by the surviving wife and daughter to recover sums illegally paid as usurious interest on a promissory note which was community property of deceased and his surviving wife. It was held that the interest of the surviving wife was severable from that of the daughter and that the statute did not apply to the former but did to the latter. The opinion was delivered by Judge Critz upon rehearing, in which a former contrary holding of Judge Nichels (Tex.Com.App., 298 S.W. 412) was overruled. Judge Critz quotes at length from Chief Justice Phillips' opinion in Spencer v. Schell, and distinguishes the two cases apparently on the ground that the entire property (the note) passed to Mrs. Schell as surviving wife and as heir. Stress is laid upon that portion of Judge Phillips' opinion to the effect that if the suit were for recovery of [107 Tex. 44, 173 S.W. 868] "distinct and severable interests," the testimony would be admissible as to one interest and not as to the other. The decision in King v. Morris has never been questioned, so far as we have been able to find. It was expressly followed in Theophilakos v. Costello, Tex.Civ.App., 54 S.W.2d 203, a closely analogous case (opinion by Judge Alexander of the Waco Court).

Jones-O'Brien, Inc., v. Loyd, Tex.Civ. App., 125 S.W.2d 684, presented another analogous case to that of King v. Morris; the only distinguishable difference being that the surviving wife brought the suit in her own behalf and as guardian of her minor children. The suit was for real estate claimed as community property of plaintiff and her deceased husband. The testimony was admitted as to the wife's interest but excluded as to that of the children. The Eastland Court (Judge Funderburk writing) held the two interests non-severable and the evidence inadmissible as to both. Quite a lengthy review of the decisions is given; but no reference is made to King v. Morris. Writ of error was granted in that case upon the holding of non-severability of the interests. However, the case was later disposed of upon agreed motion, and the question presented was not passed upon by the Supreme Court.

If the sole determining criterion as to severability be whether the interests asserted are united in a single individual, then clearly Marshall's evidence was wholly inadmissible. But we cannot take this view of it. The suit in Spencer v. Schell was upon a promissory note, the entire title to which was in Mrs. Schell. True she deraigned her title to each of two undivided half interests from different sources, one of which was through heirship. But the thing sued upon was a single entity, the note; and the decision that the interests therein were not severable is expressly rested upon the holding that "the right to their enforcement constitutes an indivisible cause of action."

The only analogy here to the Schell case lies in the fact that the interests sued upon are held by the same parties. But there is no merger of these interests into a single cause of action, nor is the recovery sought of a single item of property or upon a single chose in action. The recovery here sought is upon two wholly separate and distinct causes of action arising under two separate statutes. As heirs of their deceased son appellants' suit was predicated upon the survival statute, art. 5525 Vernon's Ann.Civ.St. art. 5525, and the right of recovery based upon and limited to that which had accrued to the deceased at the time of his death. The cause of action which survived was one for unlawful injury and the recovery limited to the incident damage, which, in the instant case, was asserted to be (other than burial expenses noted later) physical and mental pain suffered by deceased up to the time of his death.

The other cause of action sued upon arose under the death statute (Art. 4671). It was predicated upon the unlawful killing of their son and their right of recovery was predicated upon and limited to the damages sustained by them as a result of such unlawful killing. The thing sued for in each cause of action was specific items of damage, each of which was wholly distinct and separate from and wholly...