Smith v. Henger, A-2313

Citation148 Tex. 456,226 S.W.2d 425,20 A.L.R.2d 853
Decision Date11 January 1950
Docket NumberNo. A-2313,A-2313
Parties, 20 A.L.R.2d 853 SMITH et al. v. HENGER.
CourtSupreme Court of Texas

Carter, Gallagher & Barker, Howard Barker and Ben T. Warder, Jr., Dallas, for petitioner Mary L. Smith.

Burford, Ryburn, Hincks & Ford, Logan Ford, Clarence A. Guittard and Roy L. Cole, Dallas, for petitioner Texas Employers Ins. Ass'n.

O. O. Touchstone, Dallas, for respondent.

HART, Justice.

Haskell Smith brought this suit against W. C. Henger, doing business as Henger Construction Company, for damages for personal injuries alleged to have been sustained by Smith as a result of falling into a shaft being used in the construction of the Mercantile Bank Building in Dallas, while Smith was working on the job as an employee of Westheimer Rigging and Heavy Hauling Company. Texas Employers Insurance Association, the insurer of Smith's employer, intervened asserting its right to subrogation to the extent of workmen's compensation and medical and other expenses that it had paid to Smith, and also claiming a right to recover an attorney's fee. The plaintiff and the intervener recovered judgment in the district court, but the Court of Civil Appeals, one judge dissenting, reversed and rendered judgment in favor of Henger. 222 S.W.2d 422.

We are faced at the outset with Henger's attack on the jurisdiction of this court on the ground that the application for writ of error was prosecuted in the name of Mary Lillian Smith, the widow of Haskell Smith, individually and as administratrix of the estate of her deceased husband. It appears from the record that after perfection of the appeal to the Court of Civil Appeals and before the final disposition of the case by that court, Haskell Smith died and his widow filed a motion to be substituted as appellee in lieu of her deceased husband. The Court of Civil Appeals granted this motion. Henger takes the position, however, that under Rule 369-a, Texas Rules of Civil Procedure, Mrs. Smith had no right to be substituted as a party or to prosecute the application for writ of error in this court. Rule 369-a reads as follows: 'Rule 369-a. No Abatement for Death.-If any party to the record in a cause dies after rendition of judgment in the trial court, and before such cause has been finally disposed of on appeal, such cause shall not abate by such death, but the appeal may be perfected and the Court of Civil Appeals or the Supreme Court, if it has granted or thereafter grants a writ therein, shall proceed to adjudicate such cause and render judgment therein as if all the parties thereto were living, and such judgment shall have the same force and effect as if rendered in the lifetime of all the parties thereto. If appellant dies after judgment, and before the expiration of the time for perfecting appeal, sixty days after the date of such death shall be allowed in which to perfect appeal and file the record, and all bonds or other papers may be made in the names of the original parties the same as if all the parties thereto were living.'

Rule 369-a, as originally adopted in 1941, was based on the provisions of Articles 1760 and 1850, R.C.S.1925, and applied to the situation where the party died after the perfection of the appeal to the Court of Civil Appeals. These statutes or similar statutes in earlier revisions were construed in Coe v. Nash, 91 Tex. 113, 41 S.W. 473; Conn v. Hagan, 93 Tex. 334, 55 S.W. 323; Ellis v. Brooks, 101 Tex. 591, 102 S.W. 94, 103 S.W. 1196; and Wootton v. Jones, Tex.Civ.App., 286 S.W. 680, writ dismissed, but none of these cases involved the question now before us. As amended in 1943, Rule 369-a applies if a party dies at any time after judgment is rendered in the trial court.

Under Rule 369-a, it undoubtedly would have been proper to proceed with the case after Haskell Smith's death as if he were still living, without any substitution of parties. Of course this procedure in any case is fictional, because after the death of the party the prosecution of the suit must in fact be by the person or persons who have succeeded to the decedent's interest, either in their individual or representative capacities or both. The purpose of the rule is to simplify and expedite the disposition of cases on appeal; it has no effect on the substantive rights of the litigants. Compare Galveston City Ry. Co. v. Nolan, 53 Tex. 139, 146, which construed a statute containing similar provisions. Eventually the benefit or burden of the final decision of the appeal will belong to the deceased party's successor or successors in interest. See Rules 623-626, T.R.C.P.

We have concluded that Rule 369-a should not be construed to prohibit the substitution of the executor, administrator, heir, or other successor in interest of a party who dies while a case is on appeal. Substitution of parties is required in the trial courts where a party dies before judgment, Rules 150-156, 158, and 159, T.R.C.P., and on principle we can see no reason why it should not be permissible, although not required, where the party dies after judgment.

In cases where there was no applicable statute or rule permitting the case to proceed on appeal as if the deceased party were still alive, it has been held that substitution of the executor, administrator or heir of the deceased party was proper. Teas v. Robinson, 11 Tex. 774; Gibbs v. Belcher, 30 Tex. 79; Simmons v. Fisher, 46 Tex. 126; Stroud v. Ward, Tex.Civ.App., 36 S.W.2d 590. In the first case cited, after pointing out that no express statutory provision applied, Chief Justice Hemphill said: 'But, in analogy to the provisions against abatement in the Acts regulating proceedings in the District Courts, and from the necessity of the case, and that the parties should not only be living persons, but be vested with, or have some control over, the interest to be affected, it has been the practice in all cases, in which the original parties have become disabled by death, or otherwise, to substitute others who represent or control the interests involved in the litigation, and to give judgment for or against them as persons legally authorized to appear in the suit.' 11 Tex. at page 776.

In Miller v. Dyess, 137 Tex. 135, 151 S.W.2d 186, 137 A.L.R. 578, the death of a party was suggested in a motion filed in the Court of Civil Appeals at a time when it was held that neither Article 1850 nor Article 1760 applied, after final decision by the Court of Civil Appeals but before the filing of the application for writ of error. No action was taken on this motion by the Court of Civil Appeals, and the application for writ of error was filed in the name of the deceased party, by his widow, who was also his executrix. This court said that it would regard the application for writ of error as being prosecuted by the widow, as executrix and as owner under the will of the land involved in that case, and refused a motion to dismiss for want of jurisdiction.

Under Article 2277, R.C.S.1925, and its predecessors in earlier revisions, it has been held that where the party died after judgment in the trial court but before the perfection of the appeal, the appeal had to be taken in the name of the executor, administrator, or heir, and that an appeal or writ of error prosecuted in the name of the deceased party would be dismissed. Bargna v. Bargna, Tex.Civ.App., 157 S.W. 754, writ dismissed; Saner-Ragley Lumber Co. v. Spivey, Tex.Civ.App., 230 S.W. 878, 883 reversed on other grounds, Tex.Com.App., 238 S.W. 912; 3 Tex.Jur., Appeal and Error, § 109; 1 Tex.Jur., Abatement and Revival, § 53. Compare Simmang v. Cheney, Tex.Civ.App., 155 S.W. 1198. The 1943 amendment to Rule 369-a changed this rule, making it proper to perfect the appeal or prosecute the writ of error as if the party had not died. For this reason, Article 2277 was listed as repealed in our order relating to the Rules of Civil Procedure dated October 12, 1949. However, it was not intended by this notation in our order to make the method set out in Rule 369-a exclusive, and it is still permissible, in case of the death of any party entitled to an appeal or writ of error, for the executor, administrator or heir to prosecute the appeal or writ of error.

The respondent in this case argues that Mrs. Smith might derive some benefit from the allegations in the motion to substitute parties to the effect that Haskell Smith died from the effects of the injuries that are the basis of this suit. However, the cause of the decedent's death is of course entirely immaterial so far as this appeal is concerned, and such allegation could have no influence on the appellate courts' decision, which on the merits must be based on the record before the trial court. Therefore, while it was not necessary for the petitioner to be substituted for her deceased husband, we think that no harm can come from such substitution and that after the substitution was allowed in the Court of Civil Appeals, it was proper for Mrs. Smith to file the application for writ of error in her name.

Jurisdiction of the application for writ of error filed by Texas Employers Insurance Association is also attacked on the ground that its rights in the cause are dependent upon the claim of the injured employee. This contention is based on the premise that Mrs. Smith was not a proper party to file an application for writ of error, and since we have held that she properly filed the application for writ of error in her name and that we have jurisdiction of her application, the ground for this attack on the application of Texas Employers Insurance Association fails. Moreover, under Article 8307, section 6a, the insurer is expressly given the right to enforce its rights of subrogation in its own name, and it follows that it could prosecute its application for a writ of error, even if the employee or his successor in interest failed to file an application for writ of error.

On the merits, the primary question is...

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