Ritz v. City of Austin

• Decision Date: 09 November 1892
• Citation: 20 S.W. 1029
• Court: Texas Court of Appeals
• Parties: RITZ <I>et al.</I> v. CITY OF AUSTIN.

20 S.W. 1029

RITZ et al. v. CITY OF AUSTIN.

Court of Civil Appeals of Texas.

November 9, 1892.

Appeal from district court, Travis county; WILLIAM M. KEY, Judge.

Action by Anna Ritz and others against the city of Austin. Judgment sustaining certain demurrers to the petition, and dismissing the case, from which plaintiffs appeal. Affirmed.

The other facts fully appear in the following statement by FISHER, C. J.:

Alfred R. Ritz, deceased, in his lifetime sued the city of Austin for damages for injuries received on account of a defective and improper street in the said city by the overturning of his wagon. Suit was instituted July, 1885. The case was, in the lifetime of Alfred R. Ritz, tried, and judgment had in his favor, the date of the judgment being March 20, 1886. The case was appealed to the supreme court on a cost bond. Pending the appeal, Alfred R. Ritz, on July 17, 1886, died, and left a written will bequeathing all of his property, including this judgment, to his wife, Anna Ritz, one of the appellants, and making her sole executrix. The will was duly probated, and Anna Ritz qualified as sole executrix. After the death of Alfred R. Ritz, the supreme court, on the 4th day of December, 1888, reversed the said judgment, and remanded the cause for a new trial. On the 11th of November, 1889, Anna Ritz, executrix of Alfred R. Ritz, deceased, in her right as executrix, and also in her right as surviving wife, Helen Ritz, Rudolf R. Ritz, Clara Hesse, and Mary Schmidt, as the sole and only children of said Alfred R. Ritz, deceased, made themselves parties to this suit by an amended original petition, and sought to revive this suit; the said Clara Hesse, a married woman, being joined by Paul Hesse, her husband, and Mary Schmidt, also a married woman, being joined by her husband, Victor Schmidt; the said Helen Ritz being a minor, and appearing by Anna Ritz, her mother, as next friend, and a guardian ad litem being also asked to be appointed for her; the children of Alfred R. Ritz making themselves parties, provided they had any interest and were necessary parties, but they claimed no interest adverse to their mother, Anna Ritz. Appellants' amended original petition contained two counts. By the first count they sought to revive the suit as originally brought by Alfred R. Ritz. By the second count appellants sought to change the suit so as to recover under the statute, allowing the surviving wife and children to sue for damages for injuries resulting in death.

Appellee answered: (1) By a plea in abatement of the pendency of another suit for same cause or action. (2) By plea in abatement that appellants' petition showed that suit was originally brought by Alfred R. Ritz, and that he had died and, being dead, the cause of action abated. (3) That there is a misjoinder of causes of action. Appellants seek to recover damages for personal injuries received by said Alfred R. Ritz, and for damages alleged to have been sustained by appellants by reason of the death of Alfred R. Ritz. (4) General and special demurrers. (5) General denial and special answer, denying that Trinity street, at date of injury, was a public street; that the use of the same by the public was without appellee's knowledge or consent; that the street was in a reasonably good condition; that Alfred R. Ritz by his own carelessness and negligence caused the injury. The demurrers and exceptions of appellee coming on to be heard, the court entered the following judgment (1) The right of action as originally brought by Alfred R. Ritz does not survive, and that Mrs. Anna Ritz, the surviving widow, nor the said children, take, nor can take, any right by reason of the injury complained of to said Alfred R. Ritz prior to his death. (2) That the statutes (Rev St. art. 2899) do not give the right of action for injuries causing the death of a human being when caused by a municipal corporation, unless facts be alleged showing that such corporation is a common carrier. Also special exception pleading limitation sustained to as the plaintiff Anna Ritz, and overruled as to the other plaintiffs. (3) All other special exceptions are overruled. (4) That appellants' cause of action be dismissed.

The court found and filed the following conclusions of law: (1) The constitution (section 26, art. 16) was intended to allow exemplary damages for gross negligence, and against such persons, corporations, and companies only as were liable under the statutes for actual damages. (2) A municipal corporation is not liable to a surviving spouse or children for damages for negligently causing the death of husband or father, unless the facts be alleged showing that such corporation was acting as a common carrier, and as such caused the death. Rev. St. art. 2899, subd. 1. Such corporations do not come within the purview of subdivision 2 of said article, because the word "person," as therein used, evidently means natural person, and the word "another" means a similar or like person. (4) Defendant's special exception pleading the statutes of limitation is well taken as to plaintiff Anna Ritz, but not as to the other plaintiffs, who are shown to be...