Galveston, H. & S. A. Ry. Co. v. Cody

• Decision Date: 01 February 1899
• Citation: 50 S.W. 135
• Parties: GALVESTON, H. & S. A. RY. CO. v. CODY et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

50 S.W. 135

GALVESTON, H. & S. A. RY. CO. v. CODY et al.¹

Court of Civil Appeals of Texas.

February 1, 1899.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Action by Clara M. Cody and others against the Galveston, Houston & San Antonio Railway Company. There was a judgment for plaintiffs, and defendant appeals. Affirmed.

Upson, Bergstrom & Newton, for appellant. Perry J. Lewis and Webb & Finley, for appellees.

NEILL, J.

This suit was brought on January 20, 1897, by Clara M. Cody, for herself and as next friend for Joseph J. and Thomas R. Cody, and Margaret Cody, against the appellant, to recover $40,000, damages claimed to have been sustained by reason of the death of Thomas Cody, which was alleged to have occurred on the 6th day of December, 1896, by reason of the negligence of appellant. The appellant (defendant below) answered by general and special exceptions and general denial, and pleaded specially that, if Thomas Cody was killed, he was guilty of negligence contributing to his death. The case was tried on June 14, 1898, and resulted in a verdict in favor of appellees for the sum of $21,000, apportioned as follows: $6,000 to Clara M. Cody, and $7,500 each to Thomas R. and Joseph J. Cody, and in favor of the appellant, against Margaret Cody. After the verdict was rendered, the appellees entered a remittitur of $3,000, and judgment was entered for the amount of the verdict, less such remittitur.

Conclusions of Fact.

On December 6, 1896, Thomas Cody and Clara M. Cody were husband and wife, they having married in 1890, and continued to live together as man and wife from that time until the 6th of December, 1896, at which time Thomas Cody, without any negligence on his part contributing to his death, was killed by the collision of two of appellant's trains on its railroad, caused by the negligence of appellant's servants. Joseph J. and Thomas R. Cody are the minor children of Thomas and Clara M. Cody. By the negligence of appellant in causing the death of Thomas Cody, the appellees were damaged in the amount found by the verdict of the jury.

Conclusions of Law.

1. There is no error in that part of the charge of the court which submits to the jury the issue as to whether Thomas and Clara M. Cody were husband and wife. There is evidence to show that they were regularly married by license, as well as evidence to show that they were married by simply entering into an agreement to become husband and wife, and lived together in pursuance of such agreement, and held themselves out as such to the public. Either mode of marriage is recognized by the laws of this state as lawful. Ingersol v. McWillie (Tex. Civ. App.) 30 S. W. 56-61; Id. (Sup.) 30 S. W. 869; Chapman v. Chapman (Tex. Civ. App.) 32 S. W. 564; Chapman v. Chapman (Tex. Civ. App.) 41 S. W. 534; Simmons v. Simmons (Tex. Civ. App.) 39 S. W. 639; Simon v. State (Tex. Civ. App.) 20 S. W. 399; Holder v. State (Tex. Civ. App.) 29 S. W. 793.

2. No error is shown by reason of the court's failure to submit the case to the jury upon special issues requested by appellant.

3. The failure of the court to give the following special charge requested by appellant is assigned as error: "Under the laws of the state, the right to sue for damages for injuries resulting in death can only be maintained by the surviving wife or husband and the children born in lawful wedlock; and unless you believe from the evidence that the plaintiff Clara M. Cody was the lawful wife of the deceased, Thomas Cody, you are instructed to find for defendant." The substance of the charge asked is incorporated in the general charge of the court. Besides, the court, at the request of appellant's counsel, charged the jury as follows: "In order to entitle the plaintiffs to recover in this case, it is incumbent upon them to establish by a preponderance of the evidence that the plaintiff Clara M. Cody was the lawful wife of the deceased, Thomas Cody, at the time of his death; and, unless you believe from the evidence that the said plaintiff Clara M. Cody was the lawful wife of the said Thomas Cody at the time of his death, you will find for the defendant." The court, if it was authorized to do so, was not required to repeat a principle of law which had already been given in the charge to the jury. Frisby v. Withers, 61 Tex. 134; Traylor v. Townsend, Id. 144; Bumpas v. Zachary (Tex. Civ. App.) 34 S. W. 672; Suggs v. Terry, Id. 354; Railroad Co. v. Kelly, Id. 809; Campbell v. Nicolini (Tex. Civ. App.) 35 S. W. 74; Railroad Co. v. Duvall, Id. 699; Railway Co. v. Douglas, 73 Tex. 325, 11 S. W. 333; Railway Co. v. Padgett (Tex. Civ. App.) 36 S. W. 300; Oil Co. v. Valley, Id. 1000; Durnett v. Railway Co. (Tex. Civ. App.) 37 S. W. 336; Smith v. Bank, 82 Tex. 368, 17 S. W. 779; Shoe Co. v. Partridge, 82 Tex. 329, 18 S. W. 310; Railway Co. v. Taylor, 79 Tex. 104, 14 S. W. 918.

4. It is claimed that the court erred in refusing to submit to the jury the following special charge requested by appellant: "The defendant requests the court to instruct the jury: `You are further instructed that the law requires persons solemnizing the rites of matrimony to indorse the same on the license, and make a return of the same to the clerk of the county court within sixty days after the celebration of such marriage, and requires that such return shall also be recorded by the county clerk. And the law presumes that public officers have done their duty; and if you believe from the evidence that the records of the county clerks of Texas do not show that a marriage license was issued authorizing the marriage of the deceased, Thomas Cody, and the plaintiff Clara M. Brannon, or that the records do not show the return of such license, then you are instructed that the presumption of law would be that no license was issued authorizing the marriage of...