Houston & Tex. Cent. Ry. Co. v. Moore

• Decision Date: 01 January 1878
• Citation: 49 Tex. 31
• Parties: THE HOUSTON AND TEXAS CENTRAL RAILWAY CO. v. MARY A. MOORE.
• Court: Texas Supreme Court

49 Tex. 31

THE HOUSTON AND TEXAS CENTRAL RAILWAY CO.

v.MARY A. MOORE.

Supreme Court of Texas.

1878.

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

August 10, 1872, William C. Moore, husband of Mary A. Moore, was on a freight train running on the Houston and Texas Central Railway between Hempstead and Houston. At a point about two miles and a half west of Hockley station, the train ran off the track, and Moore received injuries, from the effects of which he died.

March 3, 1873, Mary A. Moore brought suit against the railway company, in her own right, and as mother and natural guardian of William J. Moore, aged about thirteen years, and Mattie F. Moore, aged about eight years. The plaintiff alleged that her husband came to his death by the negligence of the defendants, its agents and servants, under circumstances such as to make the defendant liable, and claimed damages to the amount of fifty thousand dollars.

The defendant excepted to the petition, because the proper parties were not shown to have been made; pleaded the general issue; and specially alleged in defense that the car or train on which the deceased was, at the time he received the injury, was a freight train, and that he was on said train without the consent of the defendant, and knowingly in violation of defendant's orders and instructions; that the injuries were the result of the gross negligence and carelessness of the deceased, and not owing to the negligence or carelessness of the defendant, its servants or agents.

The testimony is sufficiently given in the opinion.

Upon the exceptions, the court made the following order, forming part of the judgment: “Exceptions to parties plaintiff sustained so far as minor plaintiffs are concerned, the court holding, that, since the statute of 1870, a suit can only be brought by special guardian, if there is one, and demurrer overruled.” And in the instructions, the court directed the jury to find damages to the plaintiff, “and not to her children's loss; for their loss, if liable, the company is liable to them in an action when brought.”

The jury returned a verdict for plaintiff for five thousand dollars, upon which judgment was rendered.

Writ of error by the defendant.

Goldthwaite & Turner, for plaintiff in error.--Where a party is injured by the wrongful act, neglect, unskillfulness, or default of another, but survives the noury, his right to compensation is plain, without the aid of legislation, and the amount of such compensation, when recovered, becomes a part of his estate. When death ensues, the statute simply prevents the suit which the injured party might have prosecuted if death had not ensued, from abating with the death of the original party, and authorizes the suit for damages to be prosecuted by the surviving parties named in the act, which the common law did not authorize. The survivors named in the act are simply authorized to bring the suit which the deceased might have brought, had he survived.

Every section of the act pregnantly negatives the construction which would authorize a succession of independent actions by the several persons entitled. Every section is replete with the idea and principle of unity,--unity of plaintiffs, unity of parties, unity of action, and unity of remedy; one suit, one trial, one estimate of damages, one verdict, one judgment, and one division of the amount recovered amongst the parties entitled under the law, who are alive when the judgment is recovered.

That but one action can be maintained under our statutes, is obvious from the phraseology of the whole act. “The person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured. 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 [the suit] may be brought by such entitled parties, or any one of them.” When brought by one of the entitled parties, it must be for the use and benefit of all others entitled; for “in every such action the jury may give such damages as they may think proportionate to the injury resulting from such death.” Had it been intended that each party entitled should have the right to prosecute an independent suit, certainly the language would have been different. There would have been no necessity for providing that the amount so recovered shall be divided amongst the person or persons entitled under the act. When the action is so brought by one of the parties for the benefit of all others entitled, the party bringing the suit must show affirmatively who the parties entitled are, and that they are the only parties entitled; for if this be not required, how can the amount so recovered be divided amongst such of the parties entitled “as shall then,” at the date of the judgment, “be alive, in such shares as the jury shall find and direct”? Again, that not more than one action shall lie for and in respect of the same subject-matter of complaint, is apparent also from the fourth section of the statute. 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. It is only because several independent suits cannot be maintained that this provision is made, because one suit only can be prosecuted for the benefit of all the parties, however numerous they may be. No one but a party entitled under the act can be a party to the suit. The suit of a sole surviving plaintiff must abate upon his death; for the money recovered by the judgment can only go to the parties named in the act, or such of them as shall then, at the date of the judgment, be alive.

Suppose the deceased had left surviving him both father and mother, dependent upon him for support, would it be contended that each would have the right to maintain a separate suit? Or had left a wife and eleven children, would it be contended that twelve independent suits might be brought by the twelve different parties entitled, and the question of damages submitted to twelve different capricious juries? Does not such a proposition savor of the ridiculous? Is it not absolutely absurd? And yet is it not exactly what the defendant in error is endeavoring to maintain before this court? If Mary A. Moore, the widow, can properly maintain this suit, cannot any child maintain its suit? Cannot the father and the mother do likewise? But one action can be brought; and in that one action the rights of every party entitled under the act must be adjudicated.

The right of action which the common law denied is fully, adequately, and completely given in the first section of the statute under consideration. Turn to it:

“Section 1. If the life of any person is lost, by reason of the negligence or carelessness of the proprietor or proprietors, owner, charterer, or hirer of any railroad, steamboat, stage-coach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, gross negligence, or carelessness of their servants or agents; and whensoever the death of a person may be caused by wrongful act, neglect, unskillfulness, or default, and the act, neglect, unskillfulness, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action for such injury, then, and in every such case, the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.”

Were the statute to go no further, it would, as we have said, amply secure the right of action. The ordinary form of action would then be resorted to, very properly, as the remedy for the enforcement of the right so created and given. The claim for damages would be recoverable in the same manner, and by the same legal proceedings which are resorted to for the recovery of every other claim due the decedent's estate.

Then the result of the litigation--the amount recovered--would be assets in the hands of the executor or administrator for the payment of debts, or be subject to partition among the heirs, according to the statute of descent and distribution.

Now it is provided, by this statute, that the particular persons named in the act shall be the beneficiaries of the suit for their sole and exclusive benefit.

Then if the estate of the deceased were opened by administration, no one but the executor or administrator could maintain it.

Now it may be maintained by any one of the parties entitled for the period of three months after the death of the deceased; but when prosecuted by one, it must be prosecuted for the benefit of all the parties entitled.

Then, if there were no necessity for administration, all persons having an interest in the subject-matter of the litigation would be necessary parties to the suit.

Now, as we have seen, it is otherwise provided by the statute.

Then the parties entitled would not be limited to three calendar months in bringing their suit.

Now, as we have seen, they are so limited.

Then the ordinary period prescribed by the statute of limitation would be the only bar to the action.

Now it must be brought within one year of the death of the deceased.

Then the right of action and recovery would not be limited to those who are alive at the time the judgment is rendered.

Now every party named in the act as entitled may die before judgment is rendered, and the deceased, whose death was so caused, may have a score of grandchildren; yet they would not be entitled to judgment, for they are not parties named in the act as entitled.

Then...