Johnson v. Farmer

• Decision Date: 28 May 1896
• Citation: Johnson v. Farmer, 35 S.W. 1062, 89 Tex. 610 (Tex. 1896)
• Parties: JOHNSON v. FARMER et al.
• Court: Texas Supreme Court

35 S.W. 1062

JOHNSON v.FARMER et al.

Supreme Court of Texas.

May 28, 1896.

Certified questions from court of civil appeals of Second supreme judicial district.

Action by Clarissa Farmer and others against C. W. Johnson, administrator of the estate of H. A. McComber, deceased, to recover for the death of the husband and father of plaintiffs, who was killed by defendant's intestate.There was a judgment in favor of plaintiffs, and defendant appealed to the court of civil appeals, which certified certain questions to the supreme court for its determination.Opinion delivered.

Johnson & Akin and R. F. Arnold, for appellant.Phlete A. Martin, for appellees.

GAINES, C. J.

In this case the following questions are certified for our determination:

"H. A. McComber shot and killed George W. Farmer while the latter was attempting to take, under claim of right, from the possession of the former, a lot of corn to which they had conflicting claims.About an hour afterwards McComber shot and killed himself.This suit was brought against the administrator of his estate by the widow and children of Farmer.The question thus arising, and which we deem it proper to certify to your honors for decision, is whether an action thus brought against the administrator in the first instance is maintainable, no suit pending at the death of McComber.In the event of an affirmative answer to this question, we deem it proper to certify the further question, whether the attempt to take the corn from the possession of McComber against his consent would preclude a recovery, upon the ground that Farmer was engaged in an illegal act at the time of his death."

We are of opinion that the suit cannot be maintained.Statutes giving an action for personal injuries resulting in death have been enacted in most, if not all, of the states of our Union.In eight only has any provision been made for a survival of the cause of action in case of the death of the wrongdoer.In every state in which the statute gives the right of action, and does not expressly provide that it continue in case of the death of the person causing the injury, and in the courts in which the question has arisen for adjudication, it has been held that the cause of action does not survive.Hegerich v. Keddie, 99 N. Y. 258, 1 N. E. 787;Moe v. Smiley, 125 Pa. St. 136, 17 Atl. 228;Russell v. Sunbury, 37 Ohio St. 372;Hamilton v. Jones, 125 Ind. 176, 25 N. E. 192;Green v. Thompson, 26 Minn. 500, 5 N. W. 376.Our statute upon the subject is peculiar, not to say anomalous.Articles 3021, 3022, 3024-3026 of our Revised Statutes read as follows:

"Art. 3021.The action shall be for the sole and exclusive benefit of the surviving husband, wife, children and parents of the person whose death shall have been so caused, and the amount recovered therein shall not be liable for the debts of the deceased.

"Art. 3022.The action may be brought by all of the parties entitled thereto, or by any one or more of them for the benefit of all."

"Art. 3024.The action shall not abate by the death of either party to the record if any person entitled to the benefit of the action survives.If the plaintiff die pending the suit, when there is only one plaintiff, some one or more of the parties entitled to the money recovered may, by order of the court, be made plaintiff and the suit be prosecuted to judgment in the name of such plaintiff for the benefit of the persons entitled.

"Art. 3025.If the sole plaintiff die pending the suit, and he is the only party entitled to the money recovered, the suit shall abate.

"Art. 3026.If the defendant die pending the suit, his executor or administrator may be made a party and the suit be prosecuted to judgment as though such defendant had continued alive.The judgment in such case, if rendered in favor of the plaintiff, shall be, to be paid in due course of administration."

Articles 3024 and 3026 very clearly provide that, in case suit has been brought, and the defendant dies while it is pending, it may be revived and prosecuted to judgment against his executor or administrator.This necessarily keeps alive the cause of action in such a case.But our statutes contain no provision for the continuance of the cause of action in the event of the death of the wrongdoer before the suit is brought.The cases cited hold, in effect, that the cause of action belongs to that class which, under the rules of the common law, die with the tort feasor, and that, in the absence of some provision to the contrary, the right of action...