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

• Decision Date: 02 May 1894
• Citation: 26 S.W. 230
• Parties: GULF, C. & S. F. RY. CO. v. VIENO et ux.
• Court: Texas Court of Appeals

26 S.W. 230

GULF, C. & S. F. RY. CO. v. VIENO et ux.

Court of Civil Appeals of Texas.

May 2, 1894.

Appeal from district court, Bell county; W. A. Blackburn, Judge.

Action by Edwin Vieno and wife against the Gulf, Colorado & Santa Fe Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed.

J. W. Terry, for appellant. Monteith & Furman, for appellees.

FISHER, C. J.

This is a suit by the appellees to recover damages on account of the death of their son George Lemuel Vieno, whose death is alleged to have been caused by the negligence of the defendant; and plaintiffs also alleged that he was a minor, employed by the defendant in the hazardous position of a brakeman, and without the consent of the plaintiffs. The court, in its charge, only submitted to the jury the issue of plaintiffs' right to recover on the ground of the employment of their minor son without their consent, and did not submit any issue of negligence. There was a verdict and judgment for the appellees for $1,500.

There are several assignments of error that complain of the charge of the court that we think are untenable, except as to the ground to be noticed. The charge did not present that phase of the case that sought recovery on the ground of the negligence of the appellant, but presented only the issue as to the right of the appellees to recover for the value of the services of their minor son, of which they had been deprived by reason of the death of the minor while engaged in a hazardous employment by appellant, without the consent of his parents. Upon this branch of the case, we think the charge fairly and fully, and in a clear, concise manner, presented the issues to the jury, and about which the appellant has no just ground of complaint, provided the pleadings presented an issue as a basis for the charge.

One of the contentions of appellant is that the petition fails to allege that the appellant employed the deceased son knowing of his minority at that time, or at the time he was engaged in its service, and, therefore, that the issue presented to the jury is without pleading upon which to base it. A motion for a new trial in the court below was made, calling the attention of the trial court to this question. A general demurrer was addressed to the petition, but it does not seem that it was called to the attention of the trial court. The record being in this condition, we have had some difficulty in determining whether the sufficiency of the petition can for the first time be questioned and called to the attention of the trial court upon a motion for a new trial. Of course, if the petition does not state a cause of action, it is not too late to question the judgment by motion for new trial, as being without pleadings to support it. The petition in this case, upon which the charge of the court and the judgment are based, does not allege that the appellant employed the deceased son with knowledge or notice of his minority. As we understand the case of Railway Co. v. Redeker, 67 Tex. 190, 2 S. W. 513, it is there held that this fact must be alleged and proven in order to entitle the parents to recover; and that case was reversed because the court charged the jury that the mere employment of the minor without the consent of the parents would authorize them to recover. The court said this was error, for the reason that the railway company could only be held liable if they employed the deceased with notice of his minority; and the decision rests upon the parents the burden of alleging and proving that fact. Thus, we find, by force of the rule laid down in that case, that notice or knowledge of the minority of the deceased son upon the part of the employer is an essential element of the parents' cause of action, and that it must exist in order that they may recover. This is indispensable to a valid recovery. It is elementary that a charge presenting an issue not raised by the pleadings (Loving v. Dixon, 56 Tex. 78), or a question outside of the case made by the...