Winnt v. International & G. N. Ry. Co.

• Decision Date: 14 May 1889
• Citation: 11 S.W. 907
• Parties: WINNT <I>v.</I> INTERNATIONAL & G. N. RY. CO.
• Court: Texas Supreme Court

11 S.W. 907

WINNTv.

INTERNATIONAL & G. N. RY. CO.

Supreme Court of Texas.

May 14, 1889.

Commissioners' decision. Appeal from district court, Hays county.

Action by Almina Winnt against the International & Great Northern Railway Company for damages for the death of plaintiff's son. The petition was dismissed, and plaintiff appeals.

O. T. Brown, for appellant. W. O. Hutchison and F. H. Franklin, for appellee.

HOBBY, J.

Suit by appellant as sole surviving parent of her son, Columbus Brown, to recover $10,000 actual, and $10,000 exemplary, damages alleged to have resulted to her by reason of the death of her said son on appellee's road on December 26, 1885. The petition alleged that her son was instantly killed by and through the carelessness, gross negligence, and recklessness of appellee's servants and employés in charge of its train of cars, stating the negligence to be the neglect to give signals at the crossing at locality of his death, excessive speed of the cars, absence of a head-light and lookout, etc.; that her son was, at the time of his death, over 21 years of age, and left no surviving wife or child; that she was his sole surviving parent, and that by reason of his death, so occasioned, damages have resulted to her as such surviving parent in the sum of $10,000 actual and $10,000 exemplary. Such are the material parts of the petition necessary to be referred to in view of the disposition made of the case below. Appellee filed a general demurrer, and several special exceptions. The general demurrer was overruled. The special exceptions sustained were as follows: "That it appears from the face of said petition that plaintiff sues as the mother of a deceased person, and that under the law she has no right of action for punitory damages; that it does not appear from said petition that the death of said deceased party was caused in such manner as to render the defendant liable to plaintiff in punitory damages; that it appears from said petition that said deceased person was over 21 years of age when killed; and that there is no allegation authorizing a recovery by plaintiff for any damages resulting from said death, or showing that any damages resulted to said plaintiff by reason of such death of said deceased." The appellant declined to amend. Judgment was rendered dismissing the cause, and this appeal is prosecuted. The error assigned is the action of the court in sustaining the special exceptions mentioned.

The questions raised by the first and second special exceptions in the order mentioned are: Whether any person not within the class of persons designated by section 26, art. 16, of the state constitution can maintain a suit for the recovery of exemplary damages for the death of a person caused by the willful act or omission or gross negligence of a corporation or company; and, second, if so, whether the petition in this case contains such allegations of willful act or omission or gross negligence upon the part of defendant company, resulting in the homicide, as would make the defendant liable for exemplary damages. The section of the constitution referred to is as follows: "Every person, corporation, or company that may commit a homicide through willful act or omission or gross negligence shall be responsible in exemplary damages to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to such homicide." This constitutional provision has been the subject of discussion in several cases, in which it was examined and compared with articles 2899-2903 of the Revised Statutes bearing upon the subject of "actions for injuries resulting in death," etc. Railroad Co. v. Cowser, 57 Tex. 305; Railroad Co. v. Kindred, Id. 496. We understand the...