Daubert v. Western Meat Co.

Upon a further consideration of this case, we adhere to the views expressed in the opinion heretofore rendered by Mr. Justice McFarland. That opinion was not intended to declare that at the time the judgment in favor of the widow was given she was the only possible heir of the deceased. What is there intended is, that at that time the widow was the only heir capable of maintaining an action, or known to be in existence, and the only heir in actual potential existence. The record does not sustain the contention of the appellant, made on the rehearing, that the defendant at the time knew of the existence of the plaintiff here as an unborn child. Something more may be said on the proposition stated in the former opinion, that the statute contemplates but one cause of action for damages for the death of a person. The decisions under the Texas statute are cited as holding a different rule, but the peculiar provisions of the Texas statute account for the difference in the decisions. It provides that an action for damages caused by the death of a person may be maintained by the husband, wife, child, or children, "or any one of them," and that the damages awarded shall be divided among those entitled, "in such shares as the jury shall find or direct." Under this section, it was held in Texas that the statute contemplated but one cause of action. (Galveston etc. R.R. Co. v. Le Gierse, 51 Tex. 190. ) Afterwards, however, it was decided in that state that a previous unsuccessful attempt by a father to recover damages for the death of his wife did not bar a subsequent action by his children for the same damage; that although the statute intended but one action, yet where one of the persons entitled was not *Page 482 made a party to that action, and it was known to the defendant that there were other persons, it was the duty of the defendant to have all the parties interested made parties, or, failing to do so, that he was subject to another suit by those heirs who were not parties to the first suit. (Galveston etc. Ry. Co. v.Kutac, 72 Tex. 643.) And the same proposition was in substance decided in Nelson v. Galveston etc. Ry. Co., 78 Tex. 621.1 But these decisions were evidently based upon the part of the statute which required the jury to apportion the damages among the parties entitled, not by any specified rule, but in such proportions as the jury should see fit, under all the circumstances of the case. It was evidently considered from this provision that there was in some sense a several interest of the parties in the damages to be allowed under the statutory right of action. The decisions, therefore, are not applicable to our statute, which does not contain such a provision. In Kentucky the act provides that "the widow, heir, or personal representative" may sue. In that state it was held that there was but one cause of action allowed under the statute, that this action was complete at the death of the deceased, and the statute of limitations immediately began to run, if there was any person of the class to whom the right of action was given then capable of suing. Upon the point that there can be but one cause of action, the court in that case say: "Whenever a party has done an act which makes him liable in damages, and his liability is complete, and there is one in esse who can sue therefor and recover, the cause of action has certainly accrued against the defendant. But it is said that the cause of action has not accrued to the infant. There is but one cause of action. There can be but one recovery." (Louisville etc. Ry. Co. v. Sanders, 86 Ky. 260.) So in this state the statute gives an action which can be maintained either by the heirs or by the personal representatives. The recovery under this right of action has been made by a judgment in favor of the widow. The right given by the statute is therefore exhausted. Whether the same rule would apply in a case where the other heir was in being, or where the existence of an unborn child was known to the defendant, at the time of the previous action and trial, are questions which the former opinion does not decide, and which are not intended to be here decided. *Page 483 All that is here decided, or intended to be decided, is that where a child is unborn and its existence unknown to defendant at the time the judgment in favor of the widow or other heirs is given, an action cannot be maintained by the child after its birth, notwithstanding the provisions of section 29 of the Civil Code, to the effect that an unborn child is deemed to be in existence so far as necessary for its interests, in the event of its subsequent birth. The judgment is affirmed. Angellotti, J., Van Dyke, J., McFarland, J., Lorigan, J., and Henshaw, J., concurred. 1 22 Am. St. Rep. 81.