Schumacher Co. v. Shooter
| Decision Date | 15 February 1939 |
| Docket Number | No. 1762-7132.,1762-7132. |
| Citation | 124 S.W.2d 857 |
| Parties | SCHUMACHER CO. v. SHOOTER. |
| Court | Texas Supreme Court |
The plaintiff below, Mrs. Mary R. Shooter, a widow, defendant in error here, recovered judgment in the trial court for $2,000 because of injuries to her person received in an automobile-truck collision, $3,600 because of the death of her daughter, Anabel, and $2,400 because of the death of her daughter, Beatrice. The defendant, Schumacher Company, plaintiff in error, appealed. The Court of Civil Appeals affirmed the judgment as to the amounts awarded Mrs. Shooter on account of injuries sustained to her person and the amount recovered on account of the death of Anabel, but reversed and remanded the cause in so far as it related to the recovery awarded on account of the death of Beatrice. 94 S.W.2d 484. The ground of the reversal of the judgment was that it developed upon the trial that Beatrice left surviving her a minor child who was not a party to the suit either directly or by anyone suing in its behalf. Plaintiff conceded that the judgment should be reversed, but contends, and was sustained in the contention by the Court of Civil Appeals, that only that part of the judgment should be reversed and remanded which awarded Mrs. Shooter $2,400 on account of the death of Beatrice.
The reversal of the case in part only instead of in its entirety gives rise to the first question presented by the application. Plaintiff contends that in as much as the minor child of Beatrice has no interest in the damages arising from the death of its Aunt Anabel or the damages suffered by its grandmother, the trial court's error in trying the case without the child as a party affected only that part of the controversy relating to the recovery awarded on account of the death of Beatrice; and that a reversal and remand of only the judgment awarded because of her death operated to render the error harmless. The Court of Civil Appeals in sustaining plaintiff's contention quotes that part of rule 62a which reads: "If it appear to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error." (Italics ours.)
The amounts awarded Mrs. Shooter on account of the deaths of Anabel and Beatrice respectively were awarded to compensate her, not as an heir, but for the pecuniary benefits by way of contributions which she had a reasonable expectation of receiving had they not been killed. While the minor child of Beatrice has no interest in the judgments awarded the grandmother on account of her own bodily injuries and on account of the death of her Aunt Anabel, the grandmother has an interest in the recovery sought in the remanded portion of the cause of action. It is obvious that if the judgment is affirmed as to the recoveries allowed because of Anabel's death and the bodily injuries of plaintiff and only that part of the judgment allowed on account of the death of Beatrice is remanded, defendant will suffer the consequences of having Mrs. Shooter's cause of action against it, tried piecemeal. If the issues of negligence upon which it is grounded were severable, or if Mrs. Shooter had no interest in an alleged cause of action on account of Beatrice's death, another question would be presented. Such however is not the case and the quoted portion of rule 62a relied upon by plaintiff is not applicable. The Court of Civil Appeals was in error in remanding the cause in part rather than in...
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