Missouri Pac. Ry. Co. v. Henry

• Decision Date: 26 November 1889
• Citation: 12 S.W. 828
• Parties: MISSOURI PAC. RY. CO. <I>v.</I> HENRY.
• Court: Texas Supreme Court

12 S.W. 828

MISSOURI PAC. RY. CO.v.

HENRY.

Supreme Court of Texas.

November 26, 1889.

Commissioners' decision. Appeal from district court, Robertson county; GEORGE H. NOONAN, Judge.

F. H. Prendergast and T. J. Simmons, for appellant. Scott Field and O. D. Cannon, for appellee.

ACKER, P. J.

Isabella Henry sued the Missouri Pacific Railway Company to recover damages for the death of her son, John Henry, who was killed on the 6th day of June, 1886, while employed by defendant as a switchman in its yard at Taylor, Tex. It was alleged that the death was occasioned by the unskillfulness of the engineer in charge of the switch-engine, and by the defective condition of the engine, and that the defendant was guilty of negligence in the employment of the engineer, and in furnishing machinery for the use of deceased. It was also alleged by plaintiff that the deceased left no wife nor children, but left plaintiff, his mother, and his father, James Henry, surviving him; that James Henry, the father of deceased, and husband of plaintiff, permanently abandoned her more than six years before the filing of this suit, moved to a distant state, and she had not heard from him, or held any communication with him, for several years; that he had contributed nothing to her support, or the support of the family; that the deceased had contributed to her support since he was 11 years of age; that he was over 22 years of age when killed, and had never contributed anything to the support of his father; that no pecuniary injury resulted to her husband by the death of the son; and that he is not entitled to any benefit of this action; "wherefore she asks to be permitted to prosecute this suit in her own name, and for her own benefit; but, if it should be held that her said husband is entitled to any of the benefit of this action, then she prays that she may be permitted to prosecute this suit in her own name for the benefit of herself and her husband." Defendant answered by general denial; special exception, "because James Henry, the husband of plaintiff, is a necessary party plaintiff to this suit, and he is not made party plaintiff;" and specially pleaded exercise of due care in employing the engineer and furnishing machinery, and that deceased was fellow-servant with the engineer, and was himself guilty of contributory negligence. The demurrer for non-joiner of the husband was overruled, and the trial by jury resulted in verdict and judgment for appellee for $3,550, and that the husband, James Henry, recover nothing.

Under the first and second assignments of error, it is contended that the court erred in overruling the special demurrer to the petition, and in permitting appellee to sue alone, without making her husband a party either plaintiff or defendant. It was the evident intention of the legislature, in enacting the statute under which this suit was brought, that there should be but one suit for the benefit of all parties to whom the right of action is given, (article 2904;) and it has been decided that, where the objection for non-joinder is made at proper time, the suit should be abated until proper parties are joined in the action, either as actual parties, or included by proper allegations in the benefit of the action, (Railway Co. v. Moore, 49 Tex. 31; Railway Co. v. Le Gierse, 51 Tex. 189.) The right of action is given by the statute (article 2903) "for the sole and exclusive benefit of the surviving husband, wife, children, and parents" of the deceased; and the statute provides that "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," (article 2904.) Now, it seems to us that the language of this statute expressly authorizes the mother to bring this action in her own name, without regard to whether she be a married woman or not, and that, too, without accounting for the non-joinder of the husband, provided she bring the action for the benefit of all parties entitled to it, and in good faith prosecutes it for the benefit of all. The petition alleged that the deceased had never contributed anything to the support of his father, and that the father had not sustained any pecuniary loss by the death of the son. Following these averments, plaintiff stated in her petition: "But if it should be held that her said husband is entitled to any of the benefit of this action, then she prays that she may be permitted to prosecute this suit in her own name, for the benefit of herself and her husband." The court instructed the jury to the...