Yoakum v. Selph
| Decision Date | 08 March 1892 |
| Citation | 19 S.W. 145 |
| Parties | YOAKUM <I>et al.</I> v. SELPH <I>et al.</I> |
| Court | Texas Supreme Court |
O. T. Holt, for appellants. G. W. Tharp, for appellees.
The appellees, Mary I. Selph and Asa Selph, sued the appellants, B. F. Yoakum and J. S. McNamara, as receivers of the San Antonio & Aransas Pass Railway Company, in the district court of Harris county, alleging that the deceased, M. Z. Selph, was the husband and father of the appellees, and that on the 3d day of February, A. D. 1891, while the said M. Z. Selph was attempting to cross the San Antonio & Aransas Pass Railway track where the public road crosses the same, and driving over said road-bed, the front wheels of the said M. Z. Selph's vehicle or wagon passed over the first track when they dropped into a mud-hole between defendant's tracks, about three feet deep, with such force that said spring wagon was broken, and said Selph was hurled from his driver's seat forward upon the dashboard, and his driver's seat was thrown upon him, and he was pinned fast to the dashboard. By reason aforesaid he was mortally injured in his body and legs, so that he died from the injuries so received on the 15th day of February, 1891. The cause was tried by a jury, and a verdict and judgment was rendered for appellees, from which this appeal is prosecuted on several assignments of error. None of these assignments raise the question of the right of appellees to recover judgment against the appellants as receivers under our statute. But, as it is a question going to the foundation of the action, and is fundamental in its nature, it necessarily arises on the face of the record without reference to its formal presentation by assignments. It has been repeatedly said, and is well recognized, that in suits of this class no right of action at common law survived the decease of the person injured, but it abated with his death. Suits for damages for injuries resulting from the death of a person are exclusively statutory. Nelson v. Railway Co., 78 Tex. 624, 14 S. W. Rep. 1021. If the statute does not give the right in this case, the judgment would be unauthorized by law. That the right does not exist in the present case is settled in the case of Turner v. Cross, 18 S. W. Rep. 578, (decided at the present term...
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Allen v. Dillingham
...Slaughter, 15 Pet. 498; Ober v. Gallagher, 93 U.S. 199-208; Railway Co. v. Geiger, 15 S.W. 214, 79 Tex. 22, (compare with Yoakum v. Selph, 19 S.W. 145, 83 Tex. 607, Turner v. Cross, 18 S.W. 578, 83 Tex. 231;) Clark v. Dyer, 16 S.W. 1061, 81 Tex. 343. The statutes of Texas did give an action......
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...facts, when they should have been directed to find for an appellant, the error is fundamental, and need not be assigned. In Yoakum v. Selph, 83 Tex. 608, 19 S. W. 145, and Woessner v. Crank, 67 Tex. 389, 3 S. W. 318, it is held that where there is no assignment of error that raises the ques......
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...is wholly statutory (Nelson v. G., H. & S. A. Ry. Co., 78 Tex. 624, 14 S. W. 1021, 11 L. R. A. 391, 22 Am. St. Rep. 81; Yoakum v. Selph, 83 Tex. 607, 19 S. W. 145). In the case of G., H. & S. A. Ry. Co. v. Le Gierse, 51 Tex. 189, it was said: "The right to an action in our courts being, the......
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