St. Louis Southwestern Ry. Co. of Texas v. Hengst

• Decision Date: 27 May 1904
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HENGST et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 832

81 S.W. 832

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HENGST et al.^*

Court of Civil Appeals of Texas.

May 27, 1904.

Appeal from District Court, Smith County; R. W. Simpson, Judge.

Action by F. W. Hengst and others against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiffs, defendant appeals. Affirmed.

E. B. Perkins and Marsh & McIlwaine, for appellant. Duncan & Lasseter, T. B. Butler, and T. P. Young, for appellees.

GILL, J.

F. W. Hengst brought suit against appellant to recover damages for personal injuries alleged to have been suffered by him as a result of the alleged negligence of appellant. On the 6th day of July thereafter, Hengst died, and the appellees, his children, made themselves parties plaintiff, on the theory that the action survived to them, and also prayed for damages by reason of his death, which they alleged was due to the injuries he had received. The trial court sustained a demurrer to the portion of the petition claiming the damages which deceased might have recovered, but held the pleading good as to the claim for damages by reason of his death. Thereafter amendments were filed, not material to be mentioned here, and the cause proceeded to trial. Thereupon appellees offered in evidence the deposition of deceased duly taken while the action pended in his name. On objection of appellant that it was not taken in the case appellees were then prosecuting, the deposition was excluded. Thereupon appellees, by leave of the court, filed a trial amendment, alleging that it was impossible to aver with certainty whether deceased died from his injuries, or from some cause independent of his injuries, wherefore they sought to recover on the action as originally brought, and, in the alternative, for damages by reason of his death, if it was found that he died of his injuries. Appellant, by amendment, raised the question of misjoinder of causes of action, which the court overruled and proceeded with the trial. The depositions were again offered, and admitted over defendant's objection. The court submitted the case to the jury upon each of its phases; instructing them, among other things, that, if they found that deceased died of his injuries, they would wholly disregard his deposition. The jury found that Hengst died of his injuries, and gave appellees a verdict for $9,000. The court required a remittitur of $3,000, which being entered, the motion for new trial was overruled, and the railway company has appealed.

Inasmuch as the trial court ultimately held with appellant as to the matters embodied in the assignments of error numbered from 1 to 6, addressed to the action of the court on exceptions, it is unnecessary to discuss them. The points thus presented are decided in favor of appellant's contention in Ellyson v. Railway Company (Tex. Civ. App.) 75 S. W. 868, and the court followed that decision. In the case cited, article 3353a of the Revised Statutes of 1895, providing that suits for personal injuries, other than those resulting in death, shall survive in favor of the personal representatives of deceased, was construed to preclude the survival of a suit brought by an injured person for damages for his injuries, if he subsequently died as a result of his injuries, rather than from some independent cause. Appellees, by cross-assignments, question the soundness of that decision, and assail the action of the trial court in following it; but, since they invoke a ruling upon the point only in case the judgment is reversed, we are not called upon to express an opinion upon the question.

We will determine first the question of misjoinder of causes of action, as presented by the seventh and eighth assignments. Appellant contends that the cause of action arising in favor of appellees, if deceased died of his injuries, is separate and distinct from that existing in favor of their father prior to his death, and therefore could not properly be joined in one suit. In one sense, they are distinct, in that appellees, in prosecuting their claim by reason of the death of deceased as a result of appellant's wrongful act, could not recover a single item of damages which might have been recoverable by their father. His suit arose at common law, whereas theirs rested exclusively upon the statute. While he lived, they had no cause of action. It accrued to them only upon his death. Technically, they are distinct and separate. Practically, however, there is a close kinship between the two actions. They grow out of identically the same facts. The same proof on the issue of liability will be necessary in each case. To the defendant on that issue the same defenses are available. Practically the heirs inherit their father's right, the practical difference being in the measure of damages. Contributory negligence on the part of deceased would defeat the action. So of assumed risk, or any defense available against the suit as originally brought by deceased. Indeed, the suits are so closely related that a compromise on the part of the father would have been a bar to the children's suit. A judgment in his favor or against him would have been res adjudicata of the appellees' claim, and this notwithstanding the fact that the statute apparently confers upon them an independent right. Now, according to Ellyson's Case, supra, if deceased died of his injuries, appellees could sue only for his death. If he did not, but died from another cause, his suit survived to them, and the measure of their rights is what the law would have accorded to him on the facts. We think, under our liberal system, appellees were properly permitted to plead in the alternative, and have the same jury determine the issue of the cause of death, and award damages accordingly. The rule against multifariousness or forbidding the misjoinder of causes of action is a rule of convenience and expediency, and should be construed with reference to the broader policy which enjoins the avoidance of a multiplicity of suits. To...