Henwood v. Richardson

• Decision Date: 21 May 1942
• Docket Number: No. 5941.,5941.
• Citation: 163 S.W.2d 256
• Parties: HENWOOD v. RICHARDSON et al.
• Court: Texas Court of Appeals

163 S.W.2d 256

HENWOOD v. RICHARDSON et al.

No. 5941.

Court of Civil Appeals of Texas. Texarkana.

May 21, 1942.

Rehearing Denied June 11, 1942.

Appeal from District Court, Upshur County; A. R. Stout, Judge.

Action by Iva Mae Richardson, individually, and as next friend of her minor daughter, Mary Sue Richardson, against Berryman Henwood, trustee of the St. Louis Southwestern Railway Company of Texas, debtor, to recover damages for the alleged wrongful killing of J. C. Richardson and Joe Lynn Richardson by collision of one of defendant's trains with a school bus being operated by J. C. Richardson and in which Joe Lynn Richardson was riding. From a judgment in favor of the plaintiff, the defendant appeals.

Affirmed.

Ramey, Calhoun, Marsh & Sheehy and Joe W. Sheehy, all of Tyler, and Otis T. Dunagan, of Gilmer, for appellant.

Florence, Florence & Meredith, of Gilmer, for appellees.

JOHNSON, Chief Justice.

This is an action by appellees Mrs. Iva Mae Richardson, individually and as next friend of her minor daughter, Mary Sue Richardson, against appellant, Berryman Henwood, Trustee, St. Louis Southwestern Railway Company of Texas, Debtor, to recover damages for the alleged wrongful killing of J. C. Richardson and Joe Lynn Richardson by collision of one of appellant's trains with a school bus owned and at the time operated by said J. C. Richardson and in which the said Joe Lynn Richardson was also riding, November 14, 1940, at a point where a public road crosses appellant's tracks in Upshur County, Texas. Said J. C. Richardson, deceased, was the husband of Iva Mae Richardson and father of Mary Sue Richardson, and said Joe Lynn Richardson, deceased, was the son of the said J. C. and Iva Mae Richardson.

The cause was submitted upon special issues which were answered in favor of appellees and damages assessed and apportioned by the jury in favor of Mrs. Iva Mae Richardson for $7,500 as the pecuniary loss of her husband and $1,500 for the pecuniary loss of her son and $250 burial expenses; and in favor of the minor, Mary Sue Richardson, for $6,000 for the pecuniary loss of her father. Judgment was entered against appellant according to the verdict.

Points 1 and 2 challenge the action of the trial court in refusing to set aside the judgment and grant appellant a new trial, for want of necessary parties plaintiff under the statute. R.S. Articles 4675 and 4677, Vernon's Ann.Civ.St. arts. 4675, 4677. In the motion for new trial appellant raised the question for the first time showing that Mr. and Mrs. P. J. Richardson, father and mother of J. C. Richardson, deceased, were still living and were not parties to the suit and that it had not been brought for their benefit. Appellees contested the motion, and upon a hearing before the court introduced instruments executed and sworn to by Mr. and Mrs. P. J. Richardson in which they each in substance represented, acknowledged and confessed that J. C. Richardson after his marriage to appellee Iva Mae Richardson in January, 1927, to the date of his death had continuously lived with his wife and family and had contributed all of his earnings to their support and maintenance; that he had not in any way contributed to the support and maintenance of his parents and that they had no right to expect that he would have contributed to them in the future; that appellees are entitled to all the damages recoverable on account of the death of J. C. Richardson; that his parents had not joined in this suit because they had sustained no recoverable loss and were entitled to no damages and had no interest in the action on account of the death of their said son; and that any claim, if any they had, they now here released and agreed not to make any demands in the future. Mr. and Mrs. P. J. Richardson each appeared in person and testified on said hearing, confirming the execution of said releases, and facts therein stated, and acknowledged and confessed to the court in their testimony substantially the same facts as above set out.

Article 4675, R.S., provides: "Actions for damage arising from death shall be for the sole and exclusive benefit of and may be brought by the surviving husband, wife, children, and parents of the person whose death has been caused or by either of them for the benefit of all. * * *"

Article 4677, R.S., provides: "The jury may give such damages as they think proportionate to the injury resulting from such death. The amount so recovered shall be divided among the persons entitled to the benefit of the action, or such of them as shall then be alive, in such shares as the jury shall find by their verdict."

It is the general rule that each of the beneficiaries named in Article 4675, including the parents of the deceased, must be made parties to the suit, or it must be prosecuted by one or more of such beneficiaries for the benefit of all. East Line & R. R. Railway Co. v. Culberson, 68 Tex. 664, 5 S.W. 820. Such is the rule, in order to meet the provisions of Article 4677, requiring that the damages assessed shall be apportioned by the jury among such of the beneficiaries as are actually entitled to receive same "in such shares as the jury shall find by their verdict." It may be added that as a wholesome result of the rule, a multiplicity of suits against the defendant is avoided. But the rule is not an absolute one. It is equally as well established that where the pleadings and proof show that a beneficiary, not made a party, in fact "has no interest in the suit," that is, where such beneficiary has sustained no loss or has been settled with, the judgment will be allowed to stand. Greathouse v. Ft. Worth & Denver City Ry. Co., Tex.Com.App., 65 S.W.2d 762, 767, and authorities there cited. It is also held that where the question is raised for the first time on motion for a new trial and in opposition thereto, as in the present case, the non-joining beneficiaries appear and show that they sustained no recoverable loss by reason of the death and are entitled to no benefits of the action, the judgment will be allowed to stand. Community Natural Gas Co. v. Lane, Tex.Civ App., 133 S.W.2d 200, error dismissed correct judgment, per curiam, 134 Tex. 255, 134 S.W.2d 1058. For in such circumstances it is conclusively established that the verdict has in fact met the requirements of the statute that the damages be apportioned by the jury among all the beneficiaries legally entitled to receive same, and that the defendant is properly protected from subsequent suits of such non-joining beneficiaries.

Points 3 and 4 complain of the action of the trial court in refusing to submit appellant's requested special issues 13 and 20, including their subsections, inquiring whether J. C. Richardson failed as he approached the crossing to slacken the speed of the school bus sufficiently to enable him to discover the approach of the train before attempting to cross the tracks, and if so, was...