Wilson v. Brown

• Decision Date: 18 December 1912
• Parties: WILSON v. BROWN.
• Court: Texas Court of Appeals

154 S.W. 322

WILSON v. BROWN.

Court of Civil Appeals of Texas. Austin.

December 18, 1912.

Rehearing Denied February 26, 1913.

Appeal from District Court, Brown County; John W. Goodwin, Judge.

Action by J. L. Wilson, guardian, against G. H. Brown. From a judgment for defendant, plaintiff appeals. Affirmed.

The following statement of the nature and result of this suit is copied from appellant's brief: "This suit was brought in the district court of Brown county, Tex., by J. L. Wilson, as guardian of the person and estate of Viola Wilson, Ava Wilson, Lum Wilson, and Lloyd Brown; and the substance of plaintiff's first amended original petition, upon which the proceedings were had, was as follows, to wit: That plaintiff had theretofore been appointed such guardian by the county court of Comanche county, Tex., and had duly qualified; that Viola Wilson, Ava Wilson, Lum Wilson, and Lloyd Brown were each the children of Sallie Brown, and that the father of the three first-named children was dead, and that after his death the said Sallie Brown (then Mrs. Sallie Wilson) married L. H. Brown, and by that union the ward Lloyd Brown was born; that she was thereafter divorced from L. H. Brown, and by such decree of divorcement she was given the care, custody, and education of Lloyd Brown; that she was then married to G. H. Brown, the defendant, with whom she lived, and was his wife at the time of her death; that, at the time of the death of their mother, these children were the following ages, to wit, Viola Wilson, 16 years, Ava Wilson, 14 years, Lum Wilson, 10 years, and Lloyd Brown, 8 years; that the mother of said children, Sallie Brown, was a person of good health and energetic disposition, and that she was of bright mind and good intelligence; that she was very much attached to her children, and that she had always looked after the mental, moral, and educational development of her children, and had educated, supported, and clothed them, and that no other person had contributed to their assistance in the manner, and that she would have continued to perform this service for them during their minority; that she left them no property at her death, and there was no one left to render them, during their minority, the assistance that their mother had given them and would have continued to bestow on them. It was further alleged that on the night of the 9th of September, 1911, the defendant, G. H. Brown, brutally murdered his wife, Sallie Brown, the mother of plaintiff's wards; and, by such act deliberately and willfully done, he deprived those children of all the advantages they would have received from their mother. All these matters were set out in the first count of the petition, and which concludes with the prayer that plaintiff recover for the use and benefit of each of his wards the sum of $2,500 as actual damages, and $10,000 for each of them as exemplary damages. In a second count of said petition the plaintiff adopted all the allegations contained in the first count, and further alleged that, by the murder of their mother, the defendant had deprived them of all the advantages that would have come to them by reason of the companionship, maternal influence and association, the nurture, love, tenderness, solicitude, and affection with which their mother would have watched over their future moral, mental, educational, and spiritual development, and that there had been inflicted on them great sorrow and mental anguish on account of the death of their mother; and, on account of the things stated above, the defendant had inflicted actual damages on each of them in the sum of $2,500, for which they prayed judgment. And plaintiff in said count further alleged that by section No. 26, art. No. 16, of the Constitution of the state of Texas, and by reason of the fact that the assault made upon the said Sallie Brown by the defendant was by him willfully made with the specific intent to then and there end her life, and which assault in effect accomplished that purpose, the plaintiff is entitled to recover of the defendant, for each of his wards, the sum of $10,000 exemplary damages, and this whether plaintiff was entitled to recover actual damages under the first count of his petition, or under the second count of the petition, or whether it should be held that no actual damages were recoverable under either count. Plaintiff prayed for damages set out in the first count of the petition, and in the alternative for the damages claimed by the second count. The court sustained the general demurrer of the defendant; and, the plaintiff declining to amend, the cause was ordered dismissed, with judgment against the plaintiff for all costs, to which ruling the plaintiff excepted and gave notice of appeal."

L. V. Reid, of Comanche, for appellant. T. C. Wilkinson, of Brownwood, for appellee.

KEY, C. J. (after stating the facts as above).

The only question presented for decision is the action of the trial court in sustaining the general demurrer to the plaintiff's petition. It is stated in appellant's brief that the ruling referred to was based upon the proposition that, as a married woman cannot maintain a suit against her husband for damages based upon a tort committed against her by her husband, therefore the plaintiff in this case has no right of action against the defendant; and, if that view of the case is correct, the judgment must be affirmed.

In 1840 the Congress of the republic of Texas adopted the common law as the rule of decision, except when inconsistent with constitutional or statutory enactment, and that legislative adoption is still in force in this state.

At the time of the adoption of the common law, and ever since that time, it has been a well-settled rule of that system of law that no person can maintain an action against another person for wrongfully causing the death of a third person, even though the wrongdoer be guilty of murder and subject to a criminal prosecution therefor.

At the time referred to, and ever since then, it was and has been a rule of the common law that neither spouse could maintain an action against the other to recover damages founded solely upon a tort. Nickerson & Matson v. Nickerson, 65 Tex. 281. In the case cited Nickerson and his codefendant had unlawfully caused Nickerson's wife to be arrested and put in prison; and, after obtaining a divorce from her husband, she prosecuted a suit against him and his codefendant for damages, and recovered a judgment against them for $200. The case was appealed, and, as to the controversy between Nickerson and his wife, the Supreme Court held that it was not a question of parties, but that, on account of the marital relation, no cause of action ever existed in favor of Mrs. Nickerson as against her husband, and therefore she could not maintain the suit against him, although they were not husband and wife at the time the case was tried. Judge Speer, in his excellent work on the Rights of Married Women, has compared the Nickerson Case with other decisions rendered by the same court and holding that a married woman can maintain a suit against her husband for the purpose of protecting her property rights; and inferentially the Nickerson Case is criticised by Judge Speer as being unsound in principle. That case seems to be supported by the weight of authority; and, whatever may be our views we do not feel justified in declining to accept it as the established law of this state. Its pertinency will appear later on in this opinion.

Having no such right at the common law, if the plaintiff can maintain this action, the right to do so must be found in the legislation of this state relating to the subject of injuries resulting in death, or in some provision of the Constitution concerning that subject; and the statutory provisions relied on by appellant and incorporated in the Revised Civil Statutes of 1911 are as follows:

"Art. 4694. Actions for Injuries Resulting in Death, Brought When.—An action for actual damages on account of injuries causing the death of any person may be brought in the following cases: (1) When the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer, hirer of any railroad, steamboat, stage coach or other vehicle for the conveyance of goods or passengers, or by the unfitnes, negligence or carelessness of their servants or agents; when the death of any person is caused by the negligence or carelessness of the receiver or receivers or other person or persons in charge or control of any railroad, their servants or agents; and the liability of receivers shall extend to cases in which the death may be caused by reason of the bad or unsafe condition of the railroad or machinery or other reason or cause by which an action may be brought for damages on account of injuries, the same as if said railroad were being operated by the railroad company. (2) When the death of any person is caused by the wrongful act, negligence, unskilfulness or default of another.

"Art. 4695. Character of Wrongful Act.— The wrongful act, negligence, carelessness, unskillfulness or default mentioned in the preceding article, must be of such a character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury.

"Art. 4696. Exemplary Damages.—When the death is caused by the willful act or omission, or gross negligence of the defendant, exemplary as well as actual damages may be reccovered. Const. art. 16, § 26."

Subsequent articles designate the surviving husband, wife, children, and parents as the beneficiaries of the statute, and prescribe who may bring the suit and authorize a guardian to sue in behalf of his wards. The last article quoted, relating to exemplary damages, is embodied in the present Constitution of this state; and it is contended on behalf of appellant that, whatever may be decided as to the right to recover actual damages, the right to recover exemplary...