Childs v. Childs, 3153.

• Decision Date: 08 July 1937
• Docket Number: No. 3153.,3153.
• Citation: 107 S.W.2d 703
• Parties: CHILDS et ux. v. CHILDS.
• Court: Texas Court of Appeals

107 S.W.2d 703

CHILDS et ux. v. CHILDS.

No. 3153.

Court of Civil Appeals of Texas. Beaumont.

July 8, 1937.

Appeal from District Court, Shelby County; T. O. Davis, Judge.

Suit by J. F. Childs and wife against Reable Childs and Terrence R. Bramlett. There was a judgment for plaintiffs as against defendant Terrence R. Bramlett, and from an order sustaining defendant Reable Childs' general demurrer to their petition, and dismissing the case as to her, plaintiffs appeal.

Affirmed.

Sanders & McLeroy, of Center, for appellants.

John R. Anderson, of Center, for appellee.

COMBS, Justice.

J. F. Childs and wife, Sallie Childs, are the parents of Marlie Childs, deceased. They brought this suit in the district court of Shelby county against Reable Childs, widow of Marlie Childs, and against Terrence R. Bramlett, as defendants, for the wrongful death of their son Marlie Childs. They alleged, in substance, that the defendants, Reable Childs and Terrence Bramlett, her paramour, by a previously formed design and conspiracy between them did, on the night of April 23, 1936, wrongfully and unlawfully murder Marlie Childs by shooting him in the back of the head through a window in his own home. They pleaded that they were poor; that they were dependent upon said Marlie Childs for contributions; that he was loyal and faithful to them, had contributed to them liberally and would have continued to do so had he lived. They sued for damages for loss of said contributions in the amount of $10,000.

The trial court sustained the general demurrer of Reable Childs to plaintiffs' petition. The case proceeded to trial against Bramlett and resulted in a judgment in plaintiffs' favor for $5,000. That judgment was not appealed from, but plaintiffs appealed from the order sustaining Reable Childs' general demurrer and dismissing the case as to her.

It will be seen from the above that but one question is presented here and that is whether the parents of a deceased son have any cause of action against the surviving wife for wrongfully causing his death.

At common law no right of action existed in any one for the death of another, no matter how tortiously or wrongful the injury resulting in death may have been. Civil actions for wrongful death are wholly of statutory creation. The statute creates the right of action and specifies the class of persons who may assert it and against whom it may be asserted. 33 Tex.Jur. 15; Elliott v. City of Brownwood, 106 Tex. 292, 166 S. W. 1129; Sullivan-Sanford Lumber Co. v. Cooper, 105 Tex. 21, 142 S.W. 1168. It follows, therefore, that if the plaintiffs have any cause of action against the defendant Reable Childs, it must be founded upon a statute creating such cause of action in their favor.

Vernon's Ann.Civ.St. art. 4671 provides for cause of action for actual damages on account of the injuries resulting in death and which are caused by wrongful act, negligence, carelessness, etc. The succeeding article, 4672, reads: "The wrongful act, negligence, carelessness, unskilfulness or default mentioned in the preceding article must be of such character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury."

The quoted article clearly limits the right of action for wrongful death granted by the preceding article to those cases in which the deceased could have himself maintained an action for the injury had he survived. Such limitation is general in its nature and by its terms has application to every action for wrongful death by whomsoever it may be asserted. It necessarily follows that the statute does not preserve to any one a right of action for wrongful death unless the deceased could have maintained the action had he survived. Wilson v. Brown (Tex.Civ. App.) 154 S.W. 322 (writ refused); Magnolia Coca-Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.(2d) 944, 97 A.L.R. 1513; Norman v. Valley Gin Company (Tex.Civ. App.) 99 S.W.(2d) 1065. See, also, case note on Gowin v. Gowin (Tex.Com.App.) 292 S.W. 211; 3 Texas Law Review, 326; also case note on Katzenberg v. Katzenberg, 183 Ark. 626, 37 S.W.(2d) 696 in 10 Texas Law Review 242.

The inquiry then is narrowed to the sole question of whether or not Marlie Childs, the deceased husband, would have had a cause of action against his wife, the defendant Reable Childs, had he survived the injury. We think the decisions of our courts have settled that question against the contention of the appellants. The rule seems to be...