Dallas Ry. & Terminal Co. v. High

• Decision Date: 24 March 1937
• Docket Number: No. 7200.,7200.
• Citation: 103 S.W.2d 735
• Parties: DALLAS RY. & TERMINAL CO. v. HIGH et al.
• Court: Texas Supreme Court

103 S.W.2d 735

DALLAS RY. & TERMINAL CO. v. HIGH et al.

No. 7200.

Supreme Court of Texas.

March 24, 1937.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by Mrs. Dovie Elizabeth High and others against the Dallas Railway & Terminal Company. Judgment for the plaintiffs was affirmed by the Court of Civil Appeals [97 S.W.(2d) 965], and the defendant brings error.

Judgment of the Court of Civil Appeals and judgment of the district court reversed and judgment rendered for the defendant.

Worsham, Burford, Ryburn & Hincks, of Dallas, for plaintiff in error.

Robert B. Allen and Carden, Starling, Carden & Hemphill, all of Dallas, for defendants in error.

CRITZ, Justice.

This suit was instituted in the district court of Dallas county, Tex., by Mrs. Dovie Elizabeth High and James Turner, a minor, who sues by next friend, against Dallas Railway & Terminal Company, a corporation, to recover damages alleged to have resulted to them from the death of Mrs. Olean Godwin. Mrs. High sues as the surviving mother of Mrs. Godwin, and James Turner as her surviving son.

It appears that Mrs. Godwin died almost instantly on January 27, 1935, as the result of injuries received in a collision between a street car belonging to the railway company and a motorcycle with a side car attachment, in which she was riding at the time. The motorcycle was being driven by Mrs. Godwin's husband. The husband was also fatally injured, and died a few hours after the death of his wife.

The case was submitted to a jury in the district court on special issues, and in response to such issues the jury found:

1. That the railway company was guilty of negligence; that such negligence was the proximate cause of Mrs. Godwin's death; that Mrs. Godwin was not guilty of contributory negligence; and that Mrs. High and James Turner were damaged in the sum of $2,250.

2. That Mrs. Godwin's husband, who was driving the motorcycle in which she was riding at the time of her death, was guilty of negligence, and that such negligence on the part of the husband proximately caused and contributed to cause the collision and death of Mrs. Godwin.

The above verdict was duly received by the district court, and thereafter in due time the railway company made a motion for judgment in its favor based thereon. This motion was overruled, and judgment was entered for Mrs. High and James Turner for the amount found by the jury, $2,250. On appeal this judgment was affirmed by the Court of Civil Appeals. 97 S.W.(2d) 965. The railway company brings error.

As presented in this court, but one question of law is involved, which is:

Did the findings of the jury to the effect that the husband of Mrs. Godwin was guilty of negligence, and that such negligence proximately caused, and contributed to cause, the collision and resultant death of Mrs. Godwin, as a matter of law, entitle the railway company to a judgment in its favor?

Article 4671, R.C.S.1925, defines the cases in which actions for actual damages on account of the death of any person may be brought.

Article 4675, R.C.S.1925, as amended (Vernon's Ann.Civ.St. art. 4675), provides that actions for damages arising out of the death of any person shall be for the sole and exclusive benefit, etc., of the surviving husband, wife, children, and parents of the deceased.

Article 4672, R.C.S.1925, reads as follows: "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."

From the statement we have made, it must be assumed that the negligence of Mrs. Godwin's husband proximately caused, and contributed to cause, the injuries that produced her death. This is because the jury so found on competent evidence.

It is settled as the law of this state that where the wife is injured as the result of the negligence of her husband she cannot recover for such injuries. Missouri Pac. Ry. Co. v. White, 80 Tex. 202, 15 S.W. 808; Gulf, C. & S. F. Ry. Co. v. Greenlee, 62 Tex. 344; Northern Texas Traction Co. v. Hill (Tex.Civ.App.) 297 S.W. 778; Bostick v. T. & P. Ry. Co. (Tex. Civ.App. writ dismissed), 81 S.W.(2d) 216; Texas & P. Ry. Co. v. Rea (Tex.Civ.App. writ refused) 27 Tex.Civ.App. 549, 65 S.W. 1115; 30 Texas Jur. p. 787, § 115, and authorities there cited.

By the express provisions of article 4672, supra, the persons named in article 4675, supra, cannot recover damages under article 4671, supra, for injuries resulting in death, unless the circumstances are such that if death had not ensued the person injured could have recovered. See the authorities above cited. Also see the following additional authorities: Thompson v. Ft. W. & R. G. Ry. Co., 97 Tex. 590, 80 S.W. 990, 1 Ann.Cas. 231; Stephenville, N. & S. T. Ry. Co. v. Voss (Tex.Civ.App.) 159 S.W. 64; Olivas v. El Paso Elec. Co. (Tex.Civ.App.) 38 S.W.(2d) 165; Anderson v. T. & N. O. Ry. Co. (Tex.Civ.App.) 63 S.W.(2d) 1079; Wilson v. Brown (Tex.Civ.App.) 154 S.W. 322; Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.(2d) 944, 97 A.L.R. 1513; Sullivan-Sanford Lumber Co. v. Watson, 106 Tex. 4, 155 S.W. 179; Texas & N. O. Ry. Co. v. Berry, 67 Tex. 238, 5 S.W. 817; Price v. Houston Direct Navigation Co., 46 Tex. 535; Canode v. Sewell (Tex.Civ.App.) 172 S.W. 142; Mt. Marion Coal Mining Co. v. Holt, 54 Tex. Civ.App. 411, 118 S.W. 825; Texas & P. Ry. Co. v. Cumpston, 4 Tex.Civ.App. 25, 23 S.W. 47; Truelson v. Whitney & Bodden Shipping Co. (C.C.A.) 10 F.(2d) 412. The above authorities could be multiplied several...