Vernon Cotton Oil Co. v. Catron

LEVY, J. (after stating the facts as above). The petition did not disclose that the deceased had children living, but sought recovery solely for the benefit of the appellee, who was the wife. In fact, the appellee and the deceased had'four living children. After verdict the appellant made a motion for new trial, alleging, among other things, that deceased left surviving him four living children, and that they were necessary and proper parties to the suit, that the petition did not prosecute the suit for their benefit, and that no final judgment could be rendered. The court first entered an order granting the new trial, then on motion of the appellee and hearing proof thereunder reconsidered the ruling and set aside the order, and then overruled the motion for new trial. The appellant assigns as error the refusal of the court to grant a new trial upon this ground of the motion. The motion of appellee referred to set up as a reason why the judgment should be finally entered for appellee and the new trial overruled that two of the children were married daughters, and the other two were adult sons, and that all of the children made their own living, and were not in any manner or to any extent dependent upon the deceased for support, and that deceased did not contribute to their support or maintenance. The proof made showed that the children were adults, and the daughters married. But one of the daughters, it appears, was not living with her husband, but in the house with her parents, and she and her parents were keeping house together. [1, 2] It is the well-established rule in this state that the action should proceed in the name of all the beneficiaries, or in the name of one or more for the use and benefit also of the others interested. March v. Walker, 48 Tex. 376; Railway Co. v. Le Gierse, 51 Tex. 189; Railway Co. v. Spiker, 59 Tex. 435; Railway Co. v. Culberson, 68 Tex. 664, 5 S. W. 820; Railway Co. v. Wilson, 85 Tex. 516, 22 S. W. 578. From the mere fact that the children are adults, it does not necessarily follow that they were not necessary or proper parties to the suit. Railway Co. v. Cowser, 57 Tex. 293. Under the evidence heard on the motion, it might probably be assumed here for the moment that three of the children were not entitled to recover, and that the three eases cited by appellee would be controlling the question as to them. But, as to the daughter making her home with her parents, it could not be said, we think, that she did not sustain a pecuniary loss in the death of her father. In a trial she would be entitled to prove what aid or advantage having a pecuniary value she would have derived by the continuance of her father’s life. She was in his house and under his care and protection, abandoned by her husband, with two young children; and the jury might consider that when sickness or misfortune should render his care or assistance necessary her father would render it, and be in a condition to render it, and that this would be of some pecuniary benefit. And there are other ways in which the jury might see by proper showing how the deceased could render pecuniary aid to this daughter. So, assuming a recovery, there existed a question of fact as to her right of participation that the daughter was entitled to have the jury pass on. And she could not be held concluded by any finding of the court on the motion here, the effect of which was to avoid making her a party to the action. See Cleveland & Sons v. Smith, 102 Tex. 490, 119 S. W. 843. A release signed by the parents, it has been ruled, constitutes no defense to a motion for new trial on the ground that the parents should have been parties to the action. Railway Co. v. Wilson, supra. Nor is it any answer that the mother’s claim was barred by limitation. Railway Co. v. Spiker, supra. As the judgment must be reversed for the error stated, it is Unnecessary to discuss other assignments; but the failure to discuss the assignments relating to the sufficiency of the evidence to support the verdict should not be understood as approving the judgment in this respect *406 The circumstances might be sufficient to warrant the inference that the deceased did not die from natural causes, but met his death from being caught under and suffocated by a pile of cotton seed caving in on him. The caving in of the pile was usual and was due indisputably to constantly changing its formation as a result of the work of deceased in feeding seed from the pile to the conveyer, and this usual condition and the danger therefrom deceased well knew, and was fully aware of. How he met his death is otherwise unexplained. [3, 4] The burden of proof was upon the appellee to bring evidence sufficient to justify an inference of negligence upon the part of the appellant proximately causing the injury, and that burden is not satisfied by simply showing a cause of death which, while indicating a want of care somewhere, is as consistent with the hypothesis that it was produced by deceased’s negligence or 'the laws of gravitation (and this latter risk was assumed by deceased), as that it was produced by the negligence of appellant. Railway Co. v. Endsley, 129 S. W. 342. And assuming that the linter man may properly be chargeable with negligence in failing to give the signal that the engine would be stopped, and that the failure to giv.e the signal had Such connection with the death as to be the proximate cause, such negligence would be, as we are inclined to say from the evidence in the present record, the act of a fellow servant, and would preclude a recovery by appellee. [5] It would be the act of a fellow servant because the signal from the linter man to the seedhouse that the engine would stop was not a part of the system of work adopted and put in use by appellant, nor intended to be used by appellant, nor relied on by deceased as a precaution or timely warning against the transitory danger of seed caving in on the feeder, or to protect against the risk of handling the seed. Deceased was not a railway employé, and the common law of fellow servants would be applicable. Oil Co. v. Jonte, 36 Tex. Civ. App. 18, 80 S. W. 847. These are brief suggestions of reasons why if all the parties had been before the court we would not feel warranted in sustaining or approving the verdict in this case in favor of appellee. The judgment of the district court was ordered reversed, and the cause remanded.