Gulf, C. & S. F. Ry. Co. v. Moore

• Decision Date: 29 March 1902
• Citation: 68 S.W. 559
• Parties: GULF, C. & S. F. RY. CO. v. MOORE et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

68 S.W. 559

GULF, C. & S. F. RY. CO. v. MOORE et al.¹

Court of Civil Appeals of Texas.

March 29, 1902.

Appeal from district court, Johnson county; Wm. Poindexter, Judge.

Action by Louisa Moore and others against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. W. Terry and Ramsey & Odell, for appellant. J. A. Stanford and D. M. Watkins, for appellees.

TEMPLETON, J.

This case comes before us on appeal from a judgment recovered by the wife and children of Thomas Moore, deceased, on account of personal injuries sustained by him which did not result in his death. Moore did not sue on the said cause of action in his lifetime, this suit having been instituted by appellees, as his heirs, after his death. Appellees base their right to recover on article 3353a, Rev. St. 1895, which reads as follows: "Causes of action upon which suit has been or may hereafter be brought by the injured party for personal injuries other than those resulting in death, whether such injuries be to the health or to the reputation, or to the person of the injured party, shall not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued; but in case of the death of either or both, such cause of action shall survive to and in favor of the heirs and legal representatives of such injured party and against the person, receiver or corporation liable for such injuries and his legal representatives; and so surviving such cause of action may be hereafter prosecuted in like manner and with like legal effect as would a cause of action for injuries to personal property." Appellant contends that the statute applies only where the injured party has sued on his cause of action in his lifetime, and that, as Moore never sued, the cause of action abated upon his death, and did not survive to his heirs. Appellant insists that the language of the statute is susceptible of no other construction than that for which it contends, and that, according to the rule laid down in Turner v. Cross, 83 Tex. 218, 18 S. W. 578, 15 L. R. A. 262, such construction must be accepted as indicating the intention of the legislature. The soundness of the rule of law insisted upon is unquestioned, but we cannot concur in the contention that the language of said article is capable of no other construction than that proposed. The act provides that "causes of action upon which suit * * * may hereafter be brought by the injured party for personal injuries other than those resulting in death" shall not abate by reason of the death of such party. This language may be construed to mean that it was the intention of the legislature to provide against the abatement of causes of action upon which the injured party had the right to sue. That construction should be adopted which is in harmony with the intention of the legislature as disclosed by a consideration of the entire act, keeping in view the old law, the evil, and the remedy. The act, as originally passed, was entitled "An act to provide for the survival of causes of action for personal injuries other than those resulting in death and for the enforcement thereof." Acts 1895, c. 89. It will be observed that in the caption of the act the purpose of the law is declared to be to provide for the survival of such causes of action, and not to prevent the abatement of suits brought thereon. In the body of the act it is provided that the cause of action shall not abate, and that the cause of action shall survive, nothing being said about the abatement or revival of suit brought on such cause of action. The act, considered as a whole, shows that the cause of action was the subject with which the legislature was dealing, and forbids the construction that it was intended simply to prevent the abatement of suits brought on such causes of action by the injured party in his lifetime. At the time the act in question was passed, causes of action for injuries not resulting in death did not survive to the heirs of the injured party, but abated upon his death. By the policy of the common law such causes of action were considered as being so purely personal in their nature that they ought to be held to die with the injured party and constitute no part of his estate. The legislature considered this condition of the law as an evil, and passed the aforesaid act as a remedy therefor. Clearly, the principal question before the legislature was whether the policy of the common law should be adhered to or a new policy, at variance therewith, adopted and followed. A conclusion adverse to the wisdom of the old policy was reached, and the bar against the survival of such causes of action removed. It was within the power of the legislature to have provided only for the survival of such causes of action as had been sued on by the injured party, but such an act would have been a legal anomaly. We know of no case in the history of legislation where this has been done. Many of the states have abrogated the common-law rule in these cases, but in none of them is the survival of the cause of action made to depend on the bringing of suit thereon by the injured party in his lifetime. If our legislature had intended to adopt a policy at variance both with that of the common law and that of the states which had repudiated the rule at common law, such intention would have been manifested in no uncertain and doubtful way. In Railway Co. v. Miller (Tex. Civ. App.) 53 S. W. 709, it was held that a transfer, by the injured party, before suit brought, of a cause of action for personal injuries not resulting in death, was legal and binding. The holding can be sustained only on the theory that the survival of the cause of action did not depend on the bringing of suit thereon by the injured party in his lifetime. The point here involved is, in effect, decided in that case. Our conclusion is that the contention of appellant is without merit, and that under article 3353a, Rev. St. 1895, the cause of action sued on herein did not abate upon the death of Moore.

At the time of the accident Moore was an engineer in the employ of appellant, and had been so employed for four or five years. As such engineer he made a daily trip from Cleburne to Weatherford and return, and did the necessary switching in the yards at Weatherford. On the day of the accident, while he was pulling his train very slowly along in the yards at Weatherford, he heard something rattling under the engine. Without stopping the train, he got off the engine and down on the ground beside it for the purpose of looking under the engine to see what was the matter. After he had made the necessary inspection, he started to get back on the engine. Just as he placed his foot on the step, the engine struck a place in the track where there was a short rail, which was not properly joined to the other rails, thereby making some low joints and an uneven track, on account of which condition of the track the engine gave a lurch, causing Moore to lose his footing. He fell, and was caught under the wheels of the engine, his leg being crushed and mangled to such extent as to necessitate amputation. Appellant requested the court to charge the jury that if its track along its line of road from Cleburne to Weatherford and in the yards at Weatherford was in a bad condition, and the fact was known to Moore, or if in the ordinary discharge...