Blocker v. Brown Express

• Decision Date: 10 December 1941
• Docket Number: No. 11067.,11067.
• Citation: 158 S.W.2d 347
• Parties: BLOCKER v. BROWN EXPRESS, Inc.
• Court: Texas Court of Appeals

158 S.W.2d 347

BLOCKER v. BROWN EXPRESS, Inc.

No. 11067.

Court of Civil Appeals of Texas. San Antonio.

December 10, 1941.

Rehearing Denied February 4, 1942.

Appeal from District Court, 103d District, Cameron County; Jas. S. Graham, Judge.

Action by Lois Blocker against Brown Express, Incorporated, to recover under the death statute for damage resulting from the death of the plaintiff's mother as the result of a collision between an automobile and a truck. Judgment for defendant, and the plaintiff appeals.

Judgment affirmed.

Roberts & O'Connor, of Breckenridge, and Kent & Brown and Carter & Stiernberg, all of Harlingen, for appellant.

Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas, for appellee.

NORVELL, Justice.

Appellant, Lois Blocker, described this action as one brought under the "death statute" for damage resulting from the death of her mother, Mrs. Senie Blocker. Appellant sued in her own name, as the only child and sole surviving heir and beneficiary of the deceased.

Mrs. Senie Blocker sustained fatal injuries as the result of a collision between an automobile and a truck. This collision was the same as that involved in the case of Lois Blocker v. Brown Express, Inc., No. 16698, on the docket of the District Court of Cameron County, Texas. In the case mentioned judgment was rendered in favor of said Brown Express, Inc., upon a jury's finding that Lois Blocker was contributorily negligent in numerous particulars. The trial court's judgment was affirmed by this Court, 144 S.W.2d 451, and writ of error refused by the Supreme Court.

After both sides had rested in the present case, the trial court, upon motion of appellee, Brown Express, Inc., peremptorily instructed the jury to find for appellee, upon the theory that the judgment in the former cause, No. 16698, operated as an estoppel against a recovery by appellant in this cause. Judgment was entered accordingly.

The action of the trial court was correct. Title 77, Articles 4671 to 4678, inclusive, Vernon's Ann.Civ.Stats., commonly referred to as the "death statute," is patterned after Lord Campbell's Act passed in England in 1846. 16 Am.Jur. 39, § 49, 33 Tex.Jur. 12, § 4.

The statute in Texas, and seemingly in most jurisdictions, creates a new cause of action. Childs v. Childs, Tex.Civ.App., 107 S.W.2d 703; 33 Tex.Jur. 15, § 7, 16 Am.Jur. 47, § 61. Liability against the appellee in this case is therefore asserted by Lois Blocker in an individual capacity under the statute above referred to. In the former suit, No. 16698, Lois Blocker, in an individual capacity, also asserted that Brown Express, Inc., was liable by reason of injuries sustained by her as a result of the collision involved. In this case, therefore, we have a second action between the same parties, in which certain identical issues are involved, namely, those relating to the asserted contributory negligence of Lois Blocker. As to these issues the former judgment operates as an estoppel, for, as said by Mr. Justice Sharp in Rio Bravo Oil Company v. Hebert, 130 Tex. 1, 106 S.W.2d 242, 245: "Where parties have...