Texas Loan Agency v. Fleming

• Decision Date: 13 April 1898
• Citation: 46 S.W. 63
• Parties: TEXAS LOAN AGENCY v. FLEMING et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

46 S.W. 63

TEXAS LOAN AGENCY v. FLEMING et al.¹

Court of Civil Appeals of Texas.

April 13, 1898.

Appeal from district court, Bowie county; J. M. Talbot, Judge.

Action by Fannie R. Fleming and others against the Texas Loan Agency. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Frost, Neblett & Blanding, for appellant. Chas. S. Todd, R. W. Rodgers, and Hiram Glass, for appellees.

FLY, J.

This is a suit for damages, caused by the death of Edgar Fleming, instituted by his wife, children, and parents against appellant. The cause was tried by jury, and resulted in a verdict and judgment for $20,000 in favor of the wife and children. It was established by the facts that appellant, in 1891, held a mortgage on a certain hotel building in Texarkana, Tex., owned by one Benefield, and to settle the matter the hotel was partitioned, Benefield getting a portion 32 feet wide and 130 feet long, and appellant the balance of the building. The hall running east and west ran across both portions of the house, and was used jointly by the different owners. The hall running north and south was in the part of the building belonging to Benefield. The water-closets in the building were all on the property belonging to appellant. Guests of the hotel, on the second floor, in order to reach the water-closets, had to pass along the hall running north and south until a short hall, also on Benefield's property, running east and west, was reached, at the end of which the room in which the water-closets were situated was reached. This room belonged to appellant, and access to it could only be obtained in the manner described. In addition to the door leading from the hall into the room, there was a door on the south of the room which opened out into space. The water-closets were used indiscriminately by guests, whether in Benefield's or appellant's part of the house. The hotel was, on May 1, 1891, leased by Benefield and appellant to D. McGraw for a term of five years. At the time of the lease the door leading out into space was not locked, nor in any manner protected or guarded, but was often left open. The condition of the door was known to appellant, and it remained in that condition until the accident occurred on the morning of March 3, 1892. On February 1, 1892, McGraw abandoned the hotel, and appellant proceeded to collect rents from tenants of McGraw on the first floor, and Benefield opened an hotel in his part of the building, and with the knowledge and consent of appellant the guests of Benefield used the water-closets above described. On the night of March 2, 1892, Edgar Fleming, a guest of Benefield, went to the water-closets, and, the door being open that opened out into space, stepped out, fell to the pavement, 15 feet below, and received injuries from which he died on March 4, 1892. We find that appellant at this time had resumed control of the hotel, and that the door was open on the night of the accident. Edgar Fleming was not guilty of contributory negligence in going through the door. Edgar Fleming lost his life through the negligence of appellant. The accompanying diagram will render assistance in arriving at an understanding of the condition of the premises hereinbefore mentioned:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Explanation: A B represents the dividing line between the portion of the building owned by Benefield and that portion owned by Texas Loan Agency. 6 is the room in which Fleming was lodging; C the door out of which Fleming fell. D is the closet room, E the cross hall, and F and G the halls leading to the closet room.

The first assignment of error complains of the action of the court in not having the heirs or legal representatives of Mildred Fleming, mother of deceased, who died during the pendency of the suit, made parties. The assignment is without merit. In article 3021, Rev. St. 1895, it is provided that in cases of death arising from the negligence of another "the action shall be for the sole and exclusive benefit of the surviving husband, wife, children and parents of the person whose death shall have been so caused, and the amount recovered therein shall not be liable for the debts of deceased." In article 3024 it is provided that "the action shall not abate by the death of either party to the record, if any person entitled to the benefit of the action survives. If the plaintiff die pending the suit, when there is only one plaintiff, some one or more of the parties entitled to the money recovered may, by order of the court, be made plaintiff, and the suit be prosecuted to judgment in the name of such plaintiff for the benefit of the persons entitled." It is clear that by the "parties entitled to the money" is meant one of the class mentioned in article 3021, and that the provision was made to cover cases where one party brings suit for others, and dies as in the case of a parent suing for the benefit of minor children. This more fully appears as the reasonable construction of the law from the language of article 3025, wherein it is provided that, "if the sole plaintiff die pending the suit, and he is the only party entitled to the money recovered, the suit shall abate." That statute clearly shows that the intention was that the cause of action should be confined to the parties named in article 3021, and should not survive them.

The second assignment of error attempts to review the action of the court in permitting witnesses to testify that the door had been, on different occasions, left open. We are of the opinion that the testimony was admissible; but, if it were not, appellant having failed to show by bill of exceptions that objection was presented to the introduction of the evidence, the assignment cannot meet with consideration.

The third assignment of error attacks the action of the court in admitting evidence of declarations made by the deceased in a few minutes after the accident. No bill of exceptions was reserved as to the admission of this testimony, and the assignment will not be considered. Objections to the admission or exclusion of evidence will not be considered on appeal in the absence of proper bills of exception.

Appellant requested the court, in writing, to submit special issues to the jury, prepared by it, and the request was not complied with, and appellant assigns that action as error. The amendment adopted on July 9, 1879, and carried into the Code by the codifiers of 1879 (article 1333, Rev. St. 1879), provided that "the jury shall render a general or special verdict as may be directed by the court; and the verdict shall comprehend the whole issue or all the issues submitted to them." It is clear that the article quoted gave the district judge...