Texas & N. O. R. Co. v. Smith

• Decision Date: 31 March 1904
• Parties: TEXAS & N. O. R. CO. v. SMITH et al.
• Court: Texas Court of Appeals

Page 247

80 S.W. 247

TEXAS & N. O. R. CO. v. SMITH et al.

Court of Civil Appeals of Texas.

March 31, 1904.

Appeal from District Court, Cherokee County; Tom C. Davis, Judge.

Action by Plummer Smith and others against the Texas & New Orleans Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed.

Baker, Botts, Baker & Lovett and Willson, Box & Watkins, for appellant. Campbell & McMeans and John F. Weeks, for appellees.

PLEASANTS, J.

Appellees brought this suit against appellant to recover damages for injury to a peach orchard alleged to be the property of the plaintiffs, and to have been injured through the negligence of appellant's employés in removing the fence inclosing said orchard and permitting stock to depredate thereon. The petition alleges that plaintiffs are the legal heirs of R. N. and J. E. Smith, deceased, and as such heirs are the owners of the premises upon which said orchard was situate. The trespass for which damages are sought to be recovered is alleged to have occurred in the fall of 1901, prior to the death of J. E. Smith, the mother of plaintiffs. Damages are claimed in the sum of $2,500. The defendant answered by general demurrer and general denial, and specially excepted to that portion of the petition by which plaintiffs sought to recover damages as heirs of J. E. Smith, on the ground that the injury to the land and orchard alleged in the petition occurred prior to the death of J. E. Smith, and the right of action for such damages did not survive and descend to her heirs, but abated upon her death. This exception was sustained by the trial court. The trial in the court below by a jury resulted in a verdict and judgment in favor of plaintiffs for $300. The appellees proved upon the trial that they were children and heirs of R. N. and J. E. Smith, deceased, who in their lifetime were the owners of the premises for injury to which damages were recovered in this suit, but the evidence does not show that appellees were the only heirs of said R. N. Smith. Upon this state of the evidence the appellant requested the trial court to instruct the jury to return a verdict for the defendant, and the first assignment of error is predicated upon the refusal of the court to give the requested instruction.

To entitle plaintiffs to recover damages for injury to the property, it devolved upon them to show either that they were the sole owners of said property or that they owned a certain definite interest therein, and we think the evidence fails to meet this requirement. It is well settled that one tenant in common cannot maintain an action to recover the entire damage done to the common estate. Where the petition shows upon its face that all of the co-tenants are not joined in the suit, and such suit is for the recovery of the entire damage to the land, the question is properly raised by exception to the petition. If the petition is not subject to such exception, the question may be raised by a plea in abatement, or by an apportionment of the damages where the evidence shows what portion of the damage the plaintiffs are entitled to recover. May v. Slade, 24 Tex. 205; Rowland v. Murphy, 66 Tex. 534, 1 S. W. 658; Naugher v. Patterson (Tex. Civ. App.) 28 S. W. 582. In order to recover the entire damage to that portion of the injured property owned by R. N. Smith, appellees must have shown they were the sole heirs of said Smith, and, having failed to make this proof, they were not entitled to recover said entire damage, and it did not devolve upon the defendant to plead or prove that appellees were not the sole heirs of said R. N. Smith. If the evidence had shown that the plaintiffs were not the sole heirs of said Smith, and had further shown how many heirs the said Smith left, the plaintiffs would have been entitled to recover damages in proportion to the interest they inherited in the land, but, having failed to show what interest they inherited in the land, the evidence did not authorize a verdict in their favor for any amount. Gayheart v. Sibley (Ky.) 66 S. W. 1041; Trueheart v. Savings & Loan Co. (Tex....