Houston & Tex. Cent. R. W. Co. v. Bradley

• Decision Date: 01 January 1876
• Citation: Hous. & Tex. Cent. R. W. Co. v. Bradley, 45 Tex. 171 (Tex. 1876)
• Parties: THE HOUSTON & TEXAS CENTRAL R. W. CO. v. L. D. BRADLEY, GUARDIAN, ETC.
• Court: Texas Supreme Court

45 Tex. 171

THE HOUSTON & TEXAS CENTRAL R. W. CO.

v.L. D. BRADLEY, GUARDIAN, ETC.

Supreme Court of Texas.

1876.

ERROR from Harris.Tried below before the Hon. James Masterson.

James M.May, a passenger on the Houston & Texas Central Railway, was accidentally killed by the running off of the train, about the 8th of November, 1870.The deceased left a widow, Martha L.May, and two children, Joseph M., aged four years, and Robert B.May, aged eighteen months.Soon after the accident, the railway company effected a settlement with Mrs. May for the injury and damages from the death of her husband.The settlement was made on 22d February, 1871, the widow received three thousand dollars in gold, and executed a release as follows:

+-------------------------+
                ¦“STATE OF TEXAS,       ¦)¦
                +-----------------------+-¦
                ¦County of Freestone.   ¦)¦
                +-------------------------+
                

Know all men by these presents, that whereas my husband, James May, was, on or about the 8th day of November, 1870, killed by a railroad accident near the town of Bremond, and on the Houston & Texas Central Railroad, whereby I have sustained damages to the amount of $3,000.Now, in consideration of said claim for damages, I have this day received from the said railroad and by these presents do acknowledge the receipt of three thousand dollars gold, to me in hand paid, and do by these presents relinquish the said railroad from further damages and costs resulting from the killing of the said May.

In testimony whereof I have hereunto set my hand and scroll for seal this the 22d day of February, A.D. 1871.

+-------------------------------+
                ¦(Signed)¦MARTHA L. MAY. [L. S.]¦
                +-------------------------------+
                

Witnesses:

W. F. CUMMINS,

J. W. BREWER.”

It seems from the testimony offered by the railway company on the trial, and which was excluded, that Mrs. May in the negotiations pleaded “her poverty and the tender age of her children,”“claiming damages as the widow and as the natural guardian and mother of the children”--spoke of “part of the damages belonging to the children”--“that she intended to invest the money for the benefit of the children,” &c.(Excluded testimony of Brewer & Cummins.)

At the April Term of the District Court of Freestone county, 1871, L. D. Bradley, with whom Mrs. May had been consulting before her settlement with the railroad company about her claim for damages, at her request obtained letters of guardianship of the estates of the two children, for the purpose of procuring from the railroad company, either by suit or compromise, compensation for the killing of their father on said road.

As such guardian he instituted suit against the “Houston and Texas Central Railway Company,” the petition containing the usual allegations, and praying judgment for ten thousand dollars damages.

The defendant demurred and excepted, “for that the matters in the petition alleged do not show such a cause of action as entitles a guardian to maintain this suit, and do show on its face that there was and is another person in being competent to sue and vested by law with the right to sue in this behalf, to wit: the widow of the deceased, the mother of the minor plaintiffs, who is not made party hereto, and no cause is alleged why the suit was not instituted by her; and because the petition does not show such a cause of action as survives and inures to a guardian of the minor children of the deceased; and does not show any right of action in plaintiff against defendant.”

The demurrer and exceptions were overruled.Defendant pleaded a general denial, and the settlement “made with Mrs. May, acting for herself and children, and the payment of $3,000,” as proved by the receipt and release above set forth.

The plaintiff excepted to the plea interposing the settlement made by Mrs. May of the cause of action, which exception to the special plea was sustained.

There was a verdict for plaintiff for $1,500 for each of the minors, upon which judgment was entered.A motion for new trial was overruled, and the defendant appealed.

The assignment of errors were substantially (1) the refusal of the court to sustain the demurrer and exceptions of defendant to the petition; (2) the action of the court in sustaining the exceptions of the plaintiff to the plea of accord and satisfaction interposed by defendant, and (3) the action of the court in excluding evidence showing that in the settlement with the railroad company, Mrs. May included the damages to her children in her settlement.

Goldthwaite & Turner, for appellant.

William H. Crank, for appellee.

REEVES, ASSOCIATE JUSTICE.

This suit was brought under the provisions of the act of February 2, 1860, “authorizing the heirs, representatives, or relations of deceased persons to sue for and recover damages where the death of such person or persons has been caused or occasioned by the negligence, culpable or wrongful act of another.”

The petition is in the name of Lucius D. Bradley, guardian of Joseph M.May and Robert B.May, minor children of James M.May, against the Houston and Texas Central Railway Company, to recover damages resulting from the death of James M.May whilst a passenger on defendant's car, under circumstances that rendered the company liable for damages on account of his death, as proved on the trial.

The acts and omissions for which railway companies are liable in damages, as specified in the first section of the statute of February 2, 1860, are alleged in the petition as the grounds of the action.(Paschal'sDig., 14, 17.)

By the 2d section of this act it is provided that “every such action shall be for the sole and exclusive benefit of the surviving husband, wife, child, or children, and parents of the person whose death shall have been so caused, and may be brought by such entitled parties, or any one of them; and if such parties fail, for three calendar months, to institute suit, then it shall be the duty of the executor or administrator of the deceased, unless specially requested by all of said parties entitled not to prosecute the same.And in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death; and the amount so recovered shall be divided amongst the person or persons entitled under this act, or such of them as shall then be alive, in such shares as the jury shall find and direct, and shall not be liable for the debts of the deceased.”(Paschal'sDig., 16.)

“SEC. 3.The action shall be brought within one year after the death of such deceased.

SEC. 4.The action shall not abate by the death of either party to the record.If the plaintiff die pending the suit, where there is only one plaintiff, some one or more of the parties entitled to the money recovered may be substituted, and the suit prosecuted to judgment in the name of such party or parties for the benefit of the persons entitled,” &c.

It is not regarded as material whether the suit is brought in the name of the guardian for his ward or in the name of the ward by his guardian.By the laws of Texas, the guardian of the person is entitled to the charge and control of the person of the ward, and the guardian of the estate is entitled to the possession and management of the property belonging to the ward, and to collect all claims and debts due him, to enforce all obligations in his favor, and to bring and defend suits by or against him.(Paschal'sDig., arts. 6939, 6940)

In one of the defendant's answers it is alleged that Mrs. May, the mother of the minor plaintiffs, compromised the claim for damages resulting to her and her children from the death of James M.May, and accepted from the railway company $3,000 in gold in full satisfaction of such claim, and executed to the defendant a receipt therefor and released the company from further damages.

It is claimed by the defendant that the release by Mrs. May was a bar to the action by the minors.

In general, when two or more have such a joint interest as requires the parties to join...