Houston & T. C. R. Co. v. Walker

• Decision Date: 27 January 1915
• Docket Number: (No. 2742.)
• Citation: 173 S.W. 208
• Parties: HOUSTON & T. C. R. CO. v. WALKER et al.
• Court: Texas Supreme Court

173 S.W. 208

HOUSTON & T. C. R. CO. v. WALKER et al.

(No. 2742.)

Supreme Court of Texas.

January 27, 1915.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by T. B. Walker and others against the Houston & Texas Central Railroad Company. A judgment for the plaintiff was affirmed by the Court of Civil Appeals (167 S. W. 199), and defendants bring error. Judgment affirmed in part, and reversed and rendered for defendant in part.

Baker, Botts, Parker & Garwood, of Houston, and Head, Smith, Maxey & Head, of Sherman, for plaintiffs in error. Wolfe, Wood & Haven, of Sherman, for defendant in error.

PHILLIPS, J.

The suit was originally filed by T. B. Walker against the railroad company for damages on account of personal injuries charged to have been occasioned by its negligence. The railroad company was duly served with citation upon this petition, appeared, and answered. Later Walker died, and, his death being suggested, his widow, by an amended petition, sought recovery in behalf of herself and the four children of the decedent. Subsequently she died, and a further amended petition was filed by two of the children, Camille and Fount, for themselves and as next friends of their minor sisters, seeking damages in the sum of $40,000. Thereafter they filed another amended petition, seeking damages for themselves on account of the death of Walker, which it was charged had resulted from the injuries due to the company's negligence, and alternatively, as the heirs of Walker, praying for damages to which it was alleged he would have been entitled, had he lived, and, if it should be determined that his death was not due to the injuries pleaded, placed at the sum of $30,000. No citation was issued as to the cause of action of the plaintiffs alleged to have accrued to them as Walker's children. Following the filing of the petition last mentioned, the defendant company filed its first amended answer, stating that it was filed only as to the original suit instituted by Walker and then being prosecuted by the plaintiffs as his heirs and legal representatives, and that it refused, and had always theretofore refused, to appear or plead to the suit of the mother, or of the plaintiffs as Walker's children, on the cause of action pleaded as accruing because of his death, on account of its never having been served with citation upon such a suit. In this answer a general demurrer was followed by a special exception to the petition of the plaintiffs, urging that the two causes of action, namely, the suit of the plaintiffs as Walker's children and the suit as his heirs, were improperly joined, and praying that the plaintiffs be compelled to sever the causes, and elect as to which they would prosecute. The trial court submitted both causes of action to the jury. A verdict was returned and judgment rendered for the plaintiffs, as heirs of Walker, for $2,500, and in their favor, as surviving children, for $9,000, apportioned $1,000 to Camille, $1,000 to Fount, $2,000 to Pansy, and $5,000 to Elizabeth. In the Court of Civil Appeals, before submission there, a remittitur was entered by the plaintiffs as to the $2,500 recovered in their capacity as heirs. The judgment in other respects was affirmed by that honorable court.

A principal contention urged by the plaintiff in error in its petition is that the court acquired no jurisdiction over it upon the plaintiffs' cause of action as surviving children of Walker, because it was never served with citation thereon, and made no appearance in the case as to such cause of action. We declined to grant the writ of error upon this ground. If there were any difficulty in the question, we think it settled by the exception, or plea of misjoinder of causes of action, interposed by the defendant to the last petition filed by the plaintiffs. This constituted necessarily an appearance as to both causes of action, since the exception or plea could not well have been urged to only one of them.

The trial court instructed the jury that, if they found the death of Walker was due to any cause other than the injuries received by him on October 20, 1910, the plaintiffs could not recover in the capacity of surviving children, but could recover as Walker's heirs for such injuries suffered by him, provided they were found to have been proximately caused by the defendant's alleged negligence. By further instruction the jury were told that if they found his death was caused...