Gulf, W. T. & P. R. Co. v. Goldman

• Decision Date: 18 October 1894
• Citation: 28 S.W. 267
• Parties: GULF, W. T. & P. R. CO. v. GOLDMAN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

28 S.W. 267

GULF, W. T. & P. R. CO. v. GOLDMAN.¹

Court of Civil Appeals of Texas.

October 18, 1894.

Appeal from district court, Victoria county; S. F. Grimes, Judge.

Action by Herman Goldman against the Gulf, Western Texas & Pacific Railroad Company for damages. Judgment for plaintiff, and defendant appeals. Affirmed.

Proctor & Proctor, for appellant. A. S. Thurmond, for appellee.

WILLIAMS, J.

Appellee, joined by his wife, instituted this suit to recover damages resulting from the alleged negligent digging of a ditch by appellant on its right of way in plaintiff's farm, in which, it was alleged, water collected, became stagnant, and generated poisonous gases, etc., causing sickness in plaintiff's family, the death of one of their children, and the depreciation of the value of their homestead. Recovery was sought for all these injurious results, including damages for the loss of the services of the child, and for several others. Exceptions were sustained in the court below to the claim arising from the death of the child, and to all others except those above enumerated. Mrs. Goldman dying pending the suit, her death was suggested, and leave was obtained by appellant to prosecute the suit as surviving plaintiff. The record shows that Mrs. Goldman left children. A judgment was obtained by plaintiff, from which this appeal is taken.

But two objections are urged to this judgment, viz.: (1) That proper parties plaintiff were not made after the death of Mrs. Goldman, the contention being that her children were necessary parties; and (2) that plaintiff's cause of action was barred by limitation, which was duly pleaded. The original petition was filed April 29, 1891. Appellant's road was completed prior to March 1, 1889, and the ditch of which complaint is made was dug and full of water by that date, but no injurious consequences resulted to plaintiff before the summer of the same year. Appellant acquired, by deed from plaintiff, a right of way 100 feet in width across the farm in question, and, finding that insufficient, condemned an additional strip 25 feet wide. In constructing its road it threw up an embankment on a part of its roadbed, and, in order to get earth for this purpose, made an excavation along its right of way, parallel with the embankment, and thus left the ditch in question, in which, no proper outlets being provided, the water collected and stood. All of the work which defendant thus did was finished prior to March 1, 1889. In the summer of that year, and within two years before the suit was brought, the injuries to the health of the plaintiff's family began; and the depreciation in the value of the farm resulted, not from any direct injury to it, but from the fact that it was thus rendered unhealthy, and, in a measure, uninhabitable.

Conclusions of Law.

1. The only occasion for the joining of the wife in the original suit was the fact that a statutory cause of action for damages resulting from the death of the daughter was set up, to which the wife was a necessary party. That claim was eliminated by the ruling on exceptions, and, to the prosecution of the other cause of action asserted, her presence in the suit was neither essential nor permissible. The right asserted belonging to the community estate, the husband alone could prosecute. Nor was it necessary, after the death of the wife, to make her children parties. The husband had the right of a surviving partner to prosecute the suit without joining the heirs. Such interest as they inherited from their mother they took subject to the right, with which the law clothed him, to have possession of the community property, and hence to reduce it to possession. Moody v. Smoot, 78 Tex. 117, 14 S. W. 285 In Rowland v. Murphy, 66 Tex. 534, 1 S. W. 658, the cause of action accrued, not to the community estate during the life of the wife, but to the plaintiff and his deceased wife's children, as tenants in common, after the death of the wife; and it is expressly noted in the opinion that the suit is not prosecuted by plaintiff in any representative capacity, as survivor of the community. The other cases cited by appellant in no way involved the questions here presented. May v. Slade, 24 Tex. 205; Parks v. Dial, 56 Tex. 264; Railway Co. v. Ragsdale, 67 Tex. 28, 2 S. W. 515.

2. While the condition which caused the injuries to appellant was in its nature permanent, the injuries themselves were occasional and recurring. The rule as to limitation against actions for nuisances has been frequently laid down and variously applied. It is easier to...