Norman v. Valley Gin Co., 3021.
| Citation | 99 S.W.2d 1065 |
| Decision Date | 16 December 1936 |
| Docket Number | No. 3021.,3021. |
| Parties | NORMAN et ux. v. VALLEY GIN CO. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Hildalgo County; A. M. Kent, Judge.
Suit by J. E. Norman and wife against the Valley Gin Company. From an order sustaining general demurrer and special exceptions and dismissing plaintiffs' suit, the plaintiffs appeal.
Affirmed.
W. B. Lewis, of Harlingen, and R. O. Kenley, of Houston, for appellants.
Strickland, Ewers & Wilkins, of Mission, and Touchstone, Wight, Gormley & Price, of Dallas, for appellee.
O'QUINN, Justice.
Appellants were plaintiffs below, and appellee was the defendant. We shall refer to them as such.
Plaintiffs sued defendant to recover for the death of their infant son, David Norman, some 2 years and 8 months old. They did not bring their suit under the death statute, article 4671, but sought to recover as heirs to the estate of their deceased child, under the survival statute, article 5525, R.S.1925, Acts 1927, c. 239, § 1 (Vernon's Ann.Civ.St. art. 5525) for the value of his destroyed earning capacity based upon his life expectancy.
Plaintiffs, for cause of action, alleged that their son, David Norman, was negligently killed by a truck owned and controlled by the defendant, Valley Gin Company, a corporation incorporated under the laws of the state of Texas, fully and specifically alleging the acts of negligence. They alleged that their son, David Norman, was negligently struck by the truck, from the effects of which he died within some four hours; that he suffered great pain during the time he lived, but did not allege that he suffered conscious pain, and in their brief admit that the pain and suffering of deceased was not at any time conscious.
They further alleged that they were the legal and only heirs of the deceased, and that, as such, they were entitled to recover the value of his estate, alleged to be his earning capacity during the time after he became 21 years of age until the time of his death, had he not received the fatal injury, which they alleged to be for and during his life expectancy, or 32 years, at the rate of $150 per month, aggregating the sum of $57,600, the present worth of which was alleged to be $25,000. In other words, they sued for the present value of the life of deceased, measured by his earning capacity, alleged to be $150 per month for the period of his life expectancy, 32 years, after his becoming 21 years of age, stated to be $25,000. This, they alleged, constituted the estate of deceased to which, as his legal and only heirs, they were entitled and for which they sued.
Defendant answered by general demurrer, several special exceptions leveled at various paragraphs of appellants' petition containing allegations of facts as a basis entitling them to recover, because, as a matter of law, appellants, on the facts alleged, were not entitled to recover; plea of contributory negligence on the part of appellants in permitting their said child to be out and upon the public highway under the circumstances alleged; and plea of res adjudicata that appellants had theretofore filed suit in the same forum as here, in cause No. A-2456 seeking to recover against defendant for damages for the death of their said son (under article 4671, R.S.1925, death statute), which said suit was duly tried and resulted in a judgment against plaintiffs denying them any recovery, which judgment became, was, and is a final judgment, and which defendant pleaded as res adjudicata against the cause of action herein set up; and plea of unavoidable accident, and other defenses not necessary to mention.
The court sustained the general demurrer and each of the special exceptions, and plaintiffs, declining to amend, dismissed the suit. This appeal is from that order.
The closing paragraph of plaintiffs' petition, and their prayer for relief, are:
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