Ellis v. Moore

• Decision Date: 25 October 1881
• Docket Number: Case No. 1088.
• Citation: 55 Tex. 373
• Parties: CUNNINGHAM & ELLIS v. KATE A. MOORE ET AL.
• Court: Texas Supreme Court

55 Tex. 373

CUNNINGHAM & ELLIS

v.KATE A. MOORE ET AL.

Case No. 1088.

Supreme Court of Texas.

Oct. 25, 1881.

APPEAL from Bowie. Tried below before the Hon. B. F. Estes.

Suit brought August 4, 1879, by Kate A. Moore and her three children, the children suing by J. B. Barkman, as special guardian, to recover of appellants $25,000 damages alleged to have been sustained by the death of Spencer C. Moore, caused by the alleged negligence of the appellants.

On the 5th of October, 1880, Mary C. Moore, the mother of Spencer C. Moore, filed her petition praying to be made a party plaintiff in the suit.

The third original petition, filed October 5, 1880, alleges that Mary C. is the mother, and Kate A. the wife, of Spencer C. Moore; that the children named were the issue of Spencer C. and Kate A. Moore; that appellants were the lessees of the penitentiary, and, as such, had the custody and control of the convicts; that Spencer C. Moore was a convict, and in charge of the lessees; that in January, 1879, appellants had a number of convicts, including Spencer B. Moore, quartered in a prison house in Bowie county, Texas, the convicts being required to occupy bunks erected by appellants and their agents, the bunks being in tiers, one above the other; that Spencer C. Moore, being in the bunk nearest the ground, the fastening of the bunk above him gave way, and the bunk fell on Spencer C. Moore, inflicting a wound from which he died. The petition alleged that at the time the bunk fell, twelve or fifteen men were assembled upon it playing cards, and charged appellant and their agents with negligence in constructing the bunks, and in permitting the men thus to congregate upon it.

October 7, 1880, appellants answered by general demurrer, and specially excepted to the petition, upon the ground that Spencer C. Moore, at the time he was injured, was a convict, and could not have maintained an action for the jury had death not ensued. And upon the further ground, that more than three months elapsed from the date of the accident to the institution of the suit, and that the same should have been brought by the executor or administrator; and specially excepted to the claim of Mrs. Mary C. Moore, because more than one year had elapsed from the date of the injury to the institution of her suit.

Appellants also filed a general denial, and alleged that the bunks were carefully constructed and were perfectly safe for the purposes for which they were intended; that each convict had a sleeping bunk assigned to him, which he was directed to occupy; that Moore's bunk was on the opposite side of the building from the one which fell, and that Moore, in disregard of his instructions, which were reasonable and proper, left his bunk, and occupied the one upon which he is alleged to have been injured, with a full knowledge of the fact that the bunk above him was filled with twelve or fifteen men. This was sustained by evidence.

The court overruled the exceptions and the jury returned a verdict for the plaintiffs for $600.

Judgment was rendered upon the verdict, and, a motion for a new trial being overruled, d...