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

• Decision Date: 11 June 1886
• Citation: 1 S.W. 161
• Parties: GULF, C. & S. F. RY. CO. v. STYRON, Next Friend.
• Court: Texas Supreme Court

Page 161

1 S.W. 161

GULF, C. & S. F. RY. CO. v. STYRON, Next Friend.

Supreme Court of Texas.

June 11, 1886.

Appeal from Johnson county.

Action to recover damages for injuries sustained by the infant daughter of the nominal plaintiff while playing with defendant's turn-table, which had been left unguarded and unlocked. Judgment for plaintiff, and defendant appeals.

Gresham & Jones, for appellant, Gulf, C. & S. F. Ry. Co. Brown, Ramsey & Crane, for appellee, Styron, Next Friend.

STAYTON, J.

The application for continuance was evidently insufficient. It did not show that any effort had been made to procure the evidence on which the application was based, though the cause had been pending from August 16, 1882, and was not reached for trial until twenty-eighth November following. The pendency of a contest as to the sufficiency of the affidavit in lieu of a cost-bond was no excuse for the failure to use the necessary means to procure the evidence, and, besides, appellant knew that the appellee might comply with the rule for costs at any time by giving the proper cost-bond.

This action was brought by W. W. Styron, as next friend of Millie Styron, a minor, to recover, in her behalf, damages for an injury to her person, claimed to have been caused by the negligence of the appellant. To the petition the defendant demurred specially, on the ground that Millie Styron, the injured person, was not the party plaintiff to the action. This demurrer was overruled. So much of the petition as bears upon the question raised by the demurrer was as follows: "Now comes W. W. Styron, next friend to Millie Styron, a minor, and, with leave of the court first had and obtained, files this, his first amended original petition, amending and correcting his original petition filed herein on the sixteenth day of August, 1882, and for amendment says that he, as next friend of Millie Styron, complaining of the Gulf, Colorado & Santa Fe Railway Company, * * * would respectfully show to the court that the said Millie Styron is a minor daughter of him, the said W. W. Styron; that she has no guardian; that she resides with plaintiff, in Johnson county, Texas, and plaintiff also resides in Johnson county. Plaintiff would further show that about the latter part of the year 1881 the defendant constructed a railway in and through said Johnson county, which the defendant now owns, and is operating. Plaintiff would further show that about the first of December, 1881, defendant erected a large and heavy turntable within the corporate limits of the city of Cleburne, said county, for use in the operation of its said road, within less than one-half mile from the public square of said city; * * * that said table is easily set in motion, is attractive to children, and very dangerous when in motion, and was not guarded, inclosed, locked, or otherwise fastened. * * * Plaintiff further shows that about the twenty-fifth of December, 1881, the said Millie Styron, in passing near the table, was attracted by the crowd assembled there, and, from a freak of childish nature, went to it; that the same was being rapidly revolved by those then present. Plaintiff avers that the said Millie Styron, * * * while there on said day, and while the table was being revolved as aforesaid, without negligence on her part, was caught by said table, and thrown between the end of the same and the end of the railway track leading thereto, crushing her leg in such a manner as to necessitate its amputation above the knee; and that by reason of the injury inflicted as aforesaid she has been maimed and crippled for life, * * * to the damage of said Millie Styron thirty thousand dollars. Wherefore plaintiff prays that he, as next friend of Millie Styron, shall have and recover of and from the said defendant, for the use and benefit of the said Millie Styron, the sum of $30,000, and all costs of suit; and he prays for general and special relief."

It is urged that the action should have been brought in the name of Millie Styron, by her next friend, and that it was not sufficient when brought by the next friend for the minor's benefit. The proposition is that Millie Styron, named as plaintiff, might prosecute the action by W. W. Styron, stated in the petition to be her next friend, but that W. W. Styron, professing to act as next friend for Millie Styron, setting out a cause of action inuring to her alone, and asking a judgment for her use and benefit, the action could not be maintained; that an action by W. W. Styron for Millie Styron could not be sustained, while an action in the name of Millie Styron by W. W. Styron could be. This would seem to us to make the rights of parties to depend upon a mere formality which can be of no essential importance. The minor's volition in no manner affects the right of any person to institute an action, based on facts which entitle the minor to relief, which will inure to her personally. The minor neither selects her representative nor controls his action. The essential facts are that the action...