Nelson v. Galveston, H. & S. A. Ry. Co.

• Decision Date: 09 December 1890
• Citation: 14 S.W. 1021
• Parties: NELSON v. GALVESTON, H. & S. A. RY. CO.
• Court: Texas Supreme Court

14 S.W. 1021

NELSON v. GALVESTON, H. & S. A. RY. CO.

Supreme Court of Texas.

December 9, 1890.

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

McLeary & King and H. E. Barnard, for appellant. C. Upson, for appellee.

HOBBY, J.

The questions raised in this case are: Whether a posthumous child is entitled to recover damages for the death of his father, resulting from injuries inflicted by the alleged negligence of the appellee company. Second. If the mother of such child be capable of suing for such damages when the cause of action accrues, does the statute of limitations run against the child? Third. Is said child concluded by a suit brought by its mother and another beneficiary against the company, under our statute? In the case of Railway Co. v. Lehmberg, 75 Tex. 61, 12 S. W. Rep. 838, it is stated in the opinion by Associate Justice HENRY that "one of the children was born a month after the death" of his father; and a recovery was had by such child in that case. But the question before us was not discussed in the opinion, nor raised by the assignments. The suit was brought by the mother of the appellant, Gustave Nelson, as his next friend, to recover damages for the death of his father, resulting from injuries negligently inflicted on his father by the appellee company. The petition was filed on the 18th day of August, 1885. The averments in it necessary to a proper understanding of the questions involved show that the plaintiff's father, Gustave A. Nelson, was killed instantly in a collision occurring on defendant's road on the 25th day of April, 1882, which was caused by the alleged "gross carelessness and criminal and outrageous negligence of the defendant's officers," etc.; that the plaintiff was born on November 7, 1882, and is the legitimate son of said Gustave Nelson and Margaret Nelson, his next friend, now a feme sole. The deceased left no surviving father or mother, but only his widow, the said Margaret Nelson, and a daughter, Kate Barbara Nelson, and plaintiff, at the time of said collision "unborn, and in his mother's womb." It is further alleged that said Margaret and said Kate Barbara "compromised and settled their claims against said company arising out of the death of said Gustave Nelson, but that none has been made of plaintiff's claim, and he is entitled to compensation," etc. Actual damages are laid at $25,000, and exemplary damages at $10,000. Exceptions to the petition were filed by the company on September 8, 1885, on the ground that it showed that plaintiff's cause of action accrued more than one year before its filing, and that, if any cause of action ever existed, it appeared to have been fully paid and discharged. These exceptions were overruled by the court on September 19, 1885. On September 24, 1888, an amended answer was filed by the company, containing a general denial, and specially alleging that the injuries, from which it is alleged Gustave Nelson died, a judgment was recovered against the company for, on June 14, 1882, in the sum of $5,088, in a suit brought by plaintiff's mother, in the district court of Bexar county, for the benefit of the children of Gustave Nelson and herself; that this amount was paid to the parties entitled thereto; and that it discharged all claims against defendant. The answer also averred that at the time of the death of said Gustave Nelson, the plaintiff was an unknown quantity, — unborn; had not then, and does not now, have any right of action against the company by reason of said death. The statute of limitations of one year is pleaded by the company. In bar of plaintiff's right to recover, it is also pleaded that from the date of plaintiff's birth, November 7, 1882, until the institution of this suit, on August 18, 1885, his mother, natural guardian and next friend, was able and had the right to sue for his benefit, if he had any right; that she failed to bring suit within one year after plaintiff's birth; and that he is therefore barred. On September 25, 1888, the plaintiff excepted specially to the last plea of the company, alleging that plaintiff was unborn at the time of his father's death, and had no right of action; and excepting also to the plea of limitation set up by the company. These exceptions to the answer were by the court overruled, on September 27, 1888, and it was further ordered that the previous ruling of the court, overruling defendant's exceptions to the petition, be revoked and set aside, and that the general and special exceptions, filed by the company on September 8, 1885, to the petition be sustained. Plaintiff declining to amend, the cause was dismissed. The judgment of the lower court is before us on appeal by the plaintiff, the appellant here.

We cannot determine whether this suit was dismissed because it was believed that no right of action accrued to plaintiff, under our statute, for the recovery of damages for the death of his father from the causes alleged, by reason of the fact that he was born after the death of his father; or because the plaintiff was thought falsely concluded by a suit previously brought by his mother for herself and another child, upon the theory that only one suit was maintainable; or because he was barred by reason of the fact that his mother was capable of suing for him at the time of his father's death, and this suit was not brought within one year thereafter. Whether one or more of the foregoing reasons influenced the judgment of the court below we are not apprised. Therefore, as we consider the last-mentioned questions settled in this state adversely to the decision below, we will consider the ground first mentioned, as principally affording the basis of the judgment of the lower court. It is, in effect, claimed by the appellee that at the time of the death of the plaintiff's father, on the 25th April, 1882, the plaintiff was not in being, was unborn and unknown, and an unheard-of quantity, having no legal existence, and no right of action for the injuries complained of. This is unquestionably true, unless it is given by a fair and reasonable construction of the statute. The right of action in a case of this character is wholly statutory. It did not exist at common law, as it died with the person. Such seems to have been the law until the passage in 1846 of "Lord Campbell's Act," by the British parliament. This act authorized a recovery for injuries resulting in death by the personal representative of the deceased. It is said to be substantially in force in nearly all of the states. Railroad Co. v. Sanders, 5 S. W. Rep. 562. In our own state, this right of action is wisely recognized by the organic law, supplemented by guarded legislative provisions, enacted for the purposes of securing to the beneficiaries just compensation in a case meriting it, and protecting the defendant from excessive recoveries. After giving the right to sue for actual damages on account of injuries causing the death of a person, our statute (article 2903 of the Revised Statutes) provides: "The action shall be for the sole and exclusive benefit of the surviving * * * children * * * of the...