Missouri-Kansas-Texas R. Co. v. Hamilton

• Decision Date: 25 April 1958
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 15387,15387
• Citation: 314 S.W.2d 114
• Parties: R. CO. of Texas, Appellant, v. Mrs. Ova HAMILTON et al., Appellees.
• Court: Texas Court of Appeals

Page 114

314 S.W.2d 114

MISSOURI-KANSAS-TEXAS R. CO. of Texas, Appellant, v. Mrs. Ova HAMILTON et al., Appellees.

No. 15387.

Court of Civil Appeals of Texas, Dallas.

April 25, 1958.

Rehearing Denied May 30, 1958.

Wayne R. Howell, William A. Thie, Denison, Elliott & Nall, Sherman, for appellant.

Pete White and Caldwell, Baker & Jordan and Robert Woodruff, Dallas, Gullett & Gullett, Dension, for appellees.

DIXON, Chief Justice.

This is an appeal from a judgment against appellant-defendant Railroad, growing out of a collision at 10:00 o'clock A.M. May 31, 1956, between an automobile and a train at the intersection of Munson Street and appellant's railroad tracks in the City of Denison, Texas. The collision resulted in the death of all occupants of the automobile, consisting of the father who was driving the car, his 15-year old son, and his married daughter.

Appellee-plaintiff Mrs. Ova Hamilton, surviving widow and mother, was awarded $26,152.45 in connection with the death of her 15-year old son Bobby Deel Hamilton. Johnny Starks, also an appellee-plaintiff, was awarded $26,383.95 in connection with the death of his wife Sandra Starks, daughter of the Hamiltons.

A jury answered numerous special issues, finding in substance that (1) the driver of the car, Hubert W. Hamilton, in a number of particulars was guilty of negligence which, in each of said particulars, was a proximate cause of the collision; (2) the train was traveling at an excessive rate of speed; (3) in excess of 20 miles per hour in violation of a City ordinance; (4) there was a failure to keep the train under proper control; (5) the crossing was extraordinarily hazardous by reason of the conditions surrounding it; (6) it was negligence to fail to maintain visible flasher signals and automatic wigwag signals; (7) there was no clearly visible electrical or mechanical device at the crossing; (8) the wet and slippery condition of the street was not the sole proximate cause of the collision.

The jury also found that Mrs. Ova Hamilton had suffered damages in the amount of $61,200 on account of the death of her husband, Hubert W. Hamilton; but the court, in view of the jury findings that the husband's negligence was a proximate cause of his own death, denied his wife a recovery under the 'community property interest' rule. Mrs. Hamilton has not appealed from this portion of the judgment.

Appellant's points of error Nos. 1 and 2 pose this question: Will the surviving wife be permitted to recover money damages for the death of her son where the negligence of her husband, the child's father, contributed to the death of their minor son? Appellant contends that the question as a matter of law must be answered in the negative.

As far as we have been able to learn, there is no reported Texas case which has passed on the exact law point presented here.

However appellant takes the view that the 'community property interest' defense should control our holding. The 'community property interest' defense, as applied to children, has been explained as follows: '* * * in an action for the injury or death of a child, the negligent parent is defeated by his own contributory negligence; the other parent is defeated because the recovery would be community property, and the negligent parent would be thereby enriched, hence neither parent can recover.' 26 Tex.Law Rev. 463, 464. See also 33 Tex.Law Rev. 89.

In our opinion the 'community property interest' defense is not applicable in this case. The evidence in the record before us is to the effect that the father, Hubert W. Hamilton, was killed instantly. Upon his death the community estate was terminated. 23 Tex.Jur. 98; 11 Am.Jur. 225. His minor son, Bobby Deel Hamilton, lived for approximately an hour and fifteen minutes after the death of the father. The cause of action for the son's death did not accrue until the instant of his death. Huntington v. Walker's Austex Chili Co., Tex.Civ.App., 285 S.W.2d 255; Art. 5526, Vernon's Ann.Civ.St. Upon the son's death after the father's death, a cause of action arose in behalf of the mother, the cause of action being her separate property. Flores v. Brown, 39 Cal.2d 622, 248 P.2d 922; Carroll v. Beavers, Cal.App., 270 P.2d 23. This is so because the cause of action never existed during the lifetime of her husband, the child's father. Consequently the reason for the 'community property interest' rule is lacking here, for the negligence of the father in this case will not enrich the community estate in which the father had an interest.

But appellant goes further. It contends that regardless of the 'community property interest' rule, the wife is not entitled to recover for her son's death in this case for this reason: In the close family relationship of husband and wife each spouse impliedly authorizes the other to act for him or her in the common care and control of their children, consequently the negligence of one spouse will be imputed to the other. Darbrinsky v. Pennsylvania Co., 248 Pa. 503, 94 A. 269, L.R.A.1915E, 781; Beasley v. United States, D.C., 81 F.Supp. 518, at page 532. See also Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795; Lynch v. South Texas Lumber Co., Tex.Civ.App., 271 S.W.2d 456, and Bell v. Phillips Petroleum Co., Tex.Civ.App., 278 S.W.2d 407.

We are unable to agree with appellant In the Lowery and Lynch cases, above cited, both parents entrusted the care and custody of their child to another person who thus became their agent. The child in each case was injured because of the negligence of the other person. The parents were not permitted to recover because the negligence of the other person as agent of both parents, was imputed to the parents. Neither is the Bell case above cited in point here. No child was involved. A wife sued for her injuries negligently contributed to by her husband. She was denied recovery under the 'community property interest' rule. As to the Derbrinsky and Beasley cases, they state a rule which is not the law in Texas, and which is contrary to the rule in most if not all of the other State jurisdictions.

It has long been the law in Texas that the relation of husband and wife does not create the one as general agent of the other. Rankin v. Kerrville Bus Co., Tex.Civ.App., 115 S.W.2d 997, 999; 23 Tex.Jur. 146. Referring to the legal concept that the negligence of the husband may be imputed to the wife, Professor Greene, in 26 Tex.Law Review, 461, 465, says: 'The imputed negligence doctrine has never been accepted in this State, but had been expressly repudiated. It has now been generally repudiated and few traces of it are found anywhere.' In 23 Tex.Jur. 291, it is said, '* * * the rule now is that the husband and wife are liable personally only for their individual torts.' See also Thomason v. Pac. Mutual Life Ins. Co., Tex.Civ.App., 74 S.W.2d 162 (syl. 12). Nor will the negligence of a parent be imputed to a child. Galveston, H. & H. Ry. Co. v. Moore, 59 Tex. 64; Williams v. Texas & P. R. Co., 60 Tex 205; Galveston H. & S. A. Ry. Co. v. Kutac, 72 Tex. 643, 11 S.W. 127; Western Union Tel. Co. v. Hoffman, 80 Tex. 420, 15 S.W. 1048.

Appellant's points of error Nos. 1 and 2 are overruled.

In its points Nos. 3 and 4 appellant alleges that it was prevented from obtaining a fair trial because of the prejudicial conduct of appellees' counsel in repeatedly referring to the presence of flasher lights at the nearby Hull Street crossing in violation of the court's instructions, and the court's refusal to grant a mistrial because of such conduct.

Hull Street runs parallel to Munson Street in the City of Denison. The Hull Street crossing of the railroad tracks is one block south of the Munson Street crossing. There was a bell-ringing signal device at the Munson Street crossing where the collision occurred, but there was no flasher light signal. At the Hull Street crossing there were both types of warning signal devices.

Appellees' counsel in his opening statement told the jury, 'We expect to show you by other witnesses that this was an unusually dangerous crossing, that at the next crossing, that is the Hull Street crossing of the Katy track, that crossing was protected by flasher lights.' Objections was made to this statement on several grounds. Appellees' counsel then said, 'We withdraw that for the time being.' The court sustained the objection and said, 'The jury won't consider that.'

Nevertheless later that same morning, when one of appellees' witnesses was on the stand, the same information was again placed before the jury: 'Q. What about down there at Hull Street? Are there any flasher lights down there? A. Yes.' Objection was again made but was overruled. However the following proceedings were then had: 'The Court: Was it (the question) answered? I didn't know it was answered. A. Yes, it was answered, Your Honor. The Court: The jury won't consider it.'

Thereafter for a third time the same information was elicited by appellees' counsel. When appellant's first witness was being cross-examined by appellees' counsel the following proceedings were had: 'Q. And there is also a flasher wigwag at the Hull Street crossing? A. Yes, sir.' Objection was made and sustained. A motion for mistrial was also made. The motion was overruled, and appellant was allowed its exception to the court's ruling.

In our opinion the evidence was not admissible. St. Louis Southwestern R. Co. of Texas v. Smith, 49 Tex.Civ.App. 1, 107 S.W. 638; Missouri, K. & T. R. Co. of Texas v. Matherly, 35 Tex.Civ.App. 504, 81 S.W. 589; Tex. Cent. R. Co. v. Randall, 51 Tex.Civ.App. 249, 113 S.W. 130. In 75 C.J.S. Railroads Sec. 849, p. 143, it is said: '* * * evidence is inadmissible * * * as to safeguards or warning devices used at other crossings, where the situation and circumstance may or may not be similar.' (Emphasis ours.) There is nothing in the record before us to show that the conditions at the Hull Street crossing are similar to those at the Munson...