Barnard v. Dallas Ry. & Terminal Co.
| Decision Date | 03 December 1945 |
| Docket Number | Civil Action No. 1696. |
| Parties | BARNARD v. DALLAS RY. & TERMINAL CO. |
| Court | U.S. District Court — Northern District of Texas |
Elgar L. Robertson, of Dallas, Tex., for plaintiff.
Burford, Ryburn, Hincks & Ford, of Dallas, Tex., for defendant.
The suit is brought by the mother and on behalf of a child of the deceased, and it is alleged that he was killed by a motor bus.
The mother and the child reside in California. The deceased had been divorced from the child's mother. The mother remarried. Her husband adopted, under the laws of California, the child.
The defendant moves to dismiss and for summary judgment as to the child's claim, on the ground that the relationship theretofore existing between her and the deceased having ceased, that she is not a person entitled to the statutory right to sue for the death of her natural father.
The defendant also pleads that the deceased was drunk at the time of the accident and ran into the bus, thus contributing in such a way as to bring about that which happened.
The plaintiff asks more particulars as to the alleged drunken condition, desiring a description of the alleged intoxicants, etc.
(1) The right to sue for death is given in Texas by what is now Art. 4675, Vernon's Texas Annotated Civil Statutes, which provides that
The defendant reasons that "child" means "a legal relationship."
Border cases, but none in point have been cited by each side. Ransom v. New York, Chicago & St. Louis R. Co., 93 Ohio St. 223, 112 N.E. 586, L.R.A.1916E, 704; In re Estate of Jobson, 164 Cal. 312, 128 P. 938, 43 L.R.A.,N.S., 1062; City of St. Petersburg v. Jacek, 79 Fla. 694, 84 So. 622; In re Hunsicker, 65 Cal.App. 114, 223 P. 411; Shaver v. Nash, 181 Ark. 1112, 29 S.W.2d 298, 73 A.L.R. 961; Galveston, H. & S. A. R. Co. v. Pennington, Tex.Civ.App., 166 S.W. 464; Saladiner v. Polanco, Tex.Civ. App., 160 S.W.2d 531; Henwood v. Richardson, Tex.Civ.App., 163 S.W.2d 256; Texas & N. O. R. Co. v. Berry, 67 Tex. 238, 5 S.W. 817; Houston & T. C. R. Co. v. Bradley, 45 Tex. 171; Atchison T. & S. F. R. Co. v. Van Belle, 26 Tex.Civ. App. 511, 64 S.W. 397; Texas & N. O. v. Miller, 60 Tex.Civ.App. 627, 128 S.W. 1165...
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Go Intern., Inc. v. Lewis
...the same wording was found in the old adoption statute, Section 9, Article 46a. The Appellees rely upon Barnard v. Dallas Ry. & Terminal Co., 63 F.Supp. 344 (N.D.Tex. 1945), and Miller v. Alexandria Truck Lines, Inc., 273 F.2d 897, 79 A.L.R.2d 812 (5th Cir. 1960). Both of those held that mi......
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Powell v. Gessner
...The two which appear most nearly on point, Macon, D. & S.R. Co. v. Porter, 1942, 195 Ga. 40, 22 S.E.2d 818 and Barnard v. Dallas R. & Terminal Co., N.D.Tex.1945, 63 F.Supp. 344, were cited and discussed by the trial court in the judgment here appealed. Although these cases are admittedly pe......
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Miller v. Alexandria Truck Lines, Inc.
...counsel and advice from him. They were, therefore, proper parties to this action for Windham's death. Barnard v. Dallas Railway & Terminal Co., D.C.N.D. Tex.1945, 63 F.Supp. 344; see also, Annotation 67 A.L.R.2d 745. The value of the rights of the children of the first marriage was the subj......