J. E. Dunn & Co. v. Smith

• Decision Date: 07 February 1903
• Parties: J. E. DUNN & CO. v. SMITH et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

74 S.W. 576

J. E. DUNN & CO. v. SMITH et al.^*

Court of Civil Appeals of Texas.

February 7, 1903.

Appeal from District Court, Dallas County; T. T. Holloway, Special Judge.

Action by Jemima Smith and others against J. E. Dunn & Co. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Kenneth Foree and K. R. Craig, for appellant. R. C. Porter, E. B. Muse, and D. M. Mason, for appellees.

RAINEY, C. J.

This suit was brought by Mrs. Jemima Smith, a feme sole, Gus Smith, Adolphus Smith, and Epsie Waller, joined by her husband, Jim Waller, all negroes, against appellant J. E. Dunn & Co., a firm composed of J. E. Dunn, alleging, first, that Jemima Smith was the mother, and Gus and Adolphus Smith, the brothers, and Epsie Waller, the sister, of one Harry Smith, deceased, and that they composed all the surviving members of the family of said Harry Smith, deceased. For cause of action they alleged, in substance, that Harry Smith, about December 1, 1899, contracted the smallpox, and was taken to the pesthouse near the city of Dallas by the authorities; that about December 16th he died at the pesthouse; that plaintiffs, being informed of his death, and being desirous of having him decently buried, Gus Smith, acting for himself and for the other plaintiffs, in company with two friends of the deceased, went and selected a coffin with glass front and silver handles, at an agreed price of $25, and a burial robe at the price of $3; all of which defendant agreed to deliver at the pesthouse that night. They alleged that defendant had already been informed as to "length, breadth, and size" of deceased. They alleged that the "money was duly paid to said J. E. Dunn & Co. for and in behalf of these plaintiffs herein." They alleged that defendant, instead of delivering the coffin and robe purchased promptly, did deliver at a late hour at night a cheap pine box coffin, and delivered no robe at all; that the authorities at the pesthouse buried said deceased in said pine box, but that the same was too small to contain the remains; that his arms and legs extended on the outside of said box, and that a portion of the bottom of said box became detached while trying to put the remains in; that because of the fact that it was at the smallpox pesthouse plaintiffs were prohibited from attending the burial; that defendant knew this fact, and permitted the fraud with the expectation that plaintiffs would not discover it. Defendant answered by general demurrer and a special exception "that there is a misjoinder of parties and causes of action in this suit as to all matters complained of, except possibly the item of difference in value between the coffin contracted for and the one delivered, and that item is not sufficient in amount to give this court jurisdiction." Defendant also filed general denial. The case was tried March 22, 1902, before Special Judge T. T. Holloway without a jury. After the conclusion of the evidence and argument, defendant filed and presented to the court a motion for judgment in defendant's favor on the law and the facts. The court overruled defendant's exceptions and his motion for judgment, and rendered judgment in favor of plaintiffs for $525.50 as actual damages and $200 as exemplary damages, to which judgment defendant excepted, and gave notice of appeal.

The following findings of the court are adopted, viz.:

"(1) I find that one Harry Smith, who was a resident of Oak Cliff, Texas, during the month of December, 1900, contracted smallpox, and was by the authorities sent to the pesthouse near the city of Dallas, and that he died in said pesthouse with said disease on or about the 16th day of December, 1900.

"(2) That the plaintiffs herein, viz., Jemima Smith, who is the mother of said Harry Smith, and Gus Smith, Adolphus Smith, and Epsie Waller, brothers and sister of said Harry Smith, and all of whom reside in Oak Cliff, Texas, learned of the death of said Harry Smith on the 16th day of December, 1900, and they at once took steps to have the said Harry Smith decently and properly interred, and to this end they selected a committee of three, consisting of J. E. Moore, John Ray, and said Gus Smith, to go to defendant's place of business and select a nice coffin and robe to be used in burying the said Harry Smith.

"(3) That said committee of three did go to defendant's (J. E. Dunn & Co.) place of business on the evening of December 16, 1900, and made known to said defendant that they desired to purchase for and in behalf of plaintiffs a nice coffin and robe in which to bury the said Harry Smith, and that said committee did select and purchase from said defendant in behalf of plaintiffs a coffin at an agreed price of $25, and a robe at an agreed price of $3.

"(4) That the coffin which said committee selected and purchased was a mahogany or walnut in appearance, with silver handles, a glass front, and a silver breast plate, bearing the inscription, `Rest in Peace'; and the robe selected was a plain black robe, and which coffin was to be inclosed in a pine box to be furnished by said defendant.

"(5) That at the time of said purchase by said committee said defendant told said committee that he knew the proper measurement of the coffin to be sent, as the measurement had been sent to him from the pesthouse, and that said defendant promised said committee and obligated himself to deliver said coffin and robe promptly at said pesthouse so that the same could be used in burying said Harry Smith.

"(6) That by reason of said pesthouse being under quarantine, said committee nor the plaintiffs herein could not attend the burial of said Harry Smith, and that they had to rely upon the said defendant to deliver said coffin and robe at said pesthouse as he had obligated and bound himself so to do.

"(7) That said defendant did not deliver said coffin and robe promptly, nor did he ever deliver said coffin and robe, but defendant did, about the hour of 11 o'clock p. m., December 16, 1900, deliver at said pesthouse only a plain pine box, freshly stained, worth about $1, but certainly not to exceed $2.50, and which box was intended by defendant to be used in burying the said Harry Smith, and that said box delivered by defendant was the kind that is generally used by the city and county in burying paupers, and was of the kind furnished to the city for $1; that while said box was delivered by P. J. Donovan, the agent and employé of defendant, J. E. Dunn, the facts and circumstances are sufficient to make the defendant cognizant of what was being done, and the court finds that the defendant knew at the time of the fraud that was being perpetrated upon said plaintiffs.

"(8) That said box so delivered by defendant was too small to contain the remains of said Harry Smith, being both too short and too narrow; that when same was delivered at the said pesthouse, the parties whose duty it was to bury the dead put the remains of Harry Smith in said box, but which box, on account of being too small, broke or burst out on each side, the bottom gave way, and that said remains of said Harry Smith had to be shoved or packed into said box; that the fresh stain which had been put on said box by defendant came off on the hands of the parties while they were trying to put the negro in the coffin; and which box so containing the remains of said Harry Smith was then buried by the employés at said pesthouse.

"(9) That at the time the remaining $4 was paid to Dunn he knew that the burial robe had not been furnished, and received the $4 knowing that fact.

"(10) That the defendant was paid through the instance of plaintiffs $24 on said purchase of $28 for said coffin and robe on the said night of December 16, 1900, and the balance, $4, was paid by plaintiffs about two weeks after said date of December 16, 1900.

"(11) That the plaintiffs herein knew nothing about the substitution of coffin by the...