Brooke v. Clark

57 Tex. 105, 1880 Tex. LEXIS 150

• Court: Texas Supreme Court
• Decided: April 23, 1880
• Docket: Case No. 3601
• Status: Published

Opinions

Bonner, Associate Justice

Appellee Henry N. Clark, a minor, by his next friend, instituted this suit February 15, 1875, against appellant John Brooke, for damages, actual and exemplary, for an alleged act of gross negligence on the part of Brooke as physician and accoucher on the occasion of the birth of Clark.

On November 10, 1877, a trial was had, which resulted, upon verdict of a jury, in judgment in favor of Clark for §5,500, from which this appeal is taken.

During the pendency of the appeal defendant Brooke died, and motion has been made to dismiss the suit upon the ground that, being a personal action, it abated with his death.

Our statute enacts that a cause pending by appeal or writ of error in the supreme court shall not abate by the death of a party to the record, provided that this shall not apply to any suit or action in which the cause of action does not survive in favor of or against the legal representatives of a deceased person. Pasch. Dig., art. 6463; R. S., art. 1044.

In the recent case of Galveston City R. R. Co. v. Nolan, 53 Tex., 139, the conflicting decisions of this court upon this question were reviewed, and that of Gibbs v. Belcher, 30 Tex., 79, approved, to the effect that the original cause of action was merged into the judgment of the district court in favor of a plaintiff, and that such judgment was not vacated or opened by writ of error or appeal, but remained valid and subsisting until set aside, and constituted in favor of the legal representatives the cause of action.

The motion to abate will therefore be overruled.

The objection is raised in this court, that the court below failed, under appropriate instructions, to submit separately to the jury the questions of actual and exemplary damages, and to require them to respond accordingly in their verdict.

That this is the proper practice, was held in R. R. Co. v. Le Gierse, 51 Tex., 189, but the decision in that case did not turn upon that question.

In the later case of R. R. Co. v. Casey, 52 Tex., 112, it is said that “ it is the proper practice in cases of this character to instruct the jury to find separate verdicts, one as to the actual and the other as to exemplary damages. But the failure to do this when not excepted to, nor the proper instruction asked, would not of itself be sufficient to reverse the judgment.”

But the other objection, also raised in this court, that the suit was prosecuted for the plaintiff by next friend and not by guardian, presents a much more serious question. Prior to our recent statute on this subject (Pasch. Dig., arts. 6969-6973; Laws 15th Leg., 187, secs. 134-138), in force at the date of the commencement of this suit and of the trial below, an infant who had no general guardian could, under our practice, sue by next friend.

Under former decisions of this court, the effect of these statutes was to supersede this practice, and, for the protection of the rights of infants, to require in such cases the appointment by the court of a special guardian, who should qualify by taking an oath and giving bond. Pucket v. Johnson, 45 Tex., 550; Ins. Co. v. Ray, 50 Tex., 511; Bond v. Dillard, id., 302. Without such protection their rights might be jeopardized and their estates wasted.

We are of opinion that the failure to comply with the requisites of the statute then in force in regard to the appointment of a special guardian for the minor plaintiff, is such fundamental error apparent of record, that when the objection is made, even in this court, it would require the reversal of the judgment. Bond v. Dillard, 50 Tex., 302.

This determination has not been reached without due regard to the fact that in this particular case it may materially affect the rights of the plaintiff.

That the law should be thus held, however, would perhaps not be seriously questioned had the minor plaintiff failed in the action.

Although it seems a hardship that a law which wras intended for the protection of a minor should be invoked against his interest, yet, as has been aptly said, hard cases sometimes make bad precedents, and we feel it our duty to adhere in all cases to a sound general principle, rather than to deviate from it in the particular instance.

It is due the learned judge presiding and counsel to state that the above decisions, changing the former practice, were made subsequently to the trial below.

Judgment reversed and cause remanded.

Bevebsed and eemanded.

[Opinion delivered April 23, 1880.]