Houston & Texas Central R'y Co. v. Spencer Baker, 57 Tex. 419

Watts, J. Com. App. In the absence of evidence to the contrary, the presumption will be indulged that the laws of Georgia are the same as the laws of this state. At the time of the accrual of the supposed cause of action asserted in this case, the constitution of 1869 was in. force, By

section 27 of the general provisions •of that instrument, it is provided that “all persons who, at any time heretofore, lived together as husband and wife, and both of whom, by the law of bondage, were precluded from the rites of matrimony, and continued to live together until the death of one of the parties, shall be considered as having been legally married, and the issue of such cohabitation shall be deemed legitimate.” It appears from the record that the appellee, Spencer Baker, and the mother of Lee Baker, were both slaves; that they lived together as husband and wife, and were so recognized, from 1847 until the death of the wife in 1854; during that time Lee was born, and had always been recognized by appellee as his son, and he had always recognized appellee as his father.

Without indulging in a discussion upon the law of slavery, or the relative rights of parties growing out of the permitted cohabitation of slaves, it is sufficient, for the purposes of this case, that by the above-quoted provision of our constitution the relation of father and son between appellee and Lee Baker was legalized; and appellee could maintain such suit, with respect to the death of that son, as was authorized to be maintained by any father in regard to that particular matter. ■ The court instructed the jury that the evidence furnished no basis for the recovery of actual damages, but that if they believed from the evidence that the death of Lee Baker was caused by the gross negligence of appellant, that then they might find such sum as exemplary damages as they thought proper, not to exceed the amount claimed in the petition.

Under the charge the jury returned a verdict against appellant for the sum of $3,000 exemplary damages. At common law the surviving relatives had no right of action for damages in cases like this. By statute a right of action was in such cases given for actual damages, and the persons authorized to sue are thus designated in the statute: “Surviving husband, wife, child or children, and parents of the person whose death shall have been so caused.” Pasch. Dig., arts. 15 and

Section 30 of the general provisions of the constitution of 1869 provides that “ Every person, corporation or company that may commit a homicide through willful act or omission, 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, separately and consecutively,” etc. As was said by Justice Bonner in Railroad Co. v. Le Gierse, 51 Tex., 203, “ The constitutional provision giving exemplary damages in such cases did not repeal the previous act of the legislature, but was simply cumulative.

The act was intended, according to the well-settled construction of similar statutes, to give compensatory damages only; but the constitution went a step beyond, and gave also exemplary damages.” In treating of these two kinds of damages in such cases, the one given by statute and the other by constitutional provision, in the case of Campbell v. H. & T. C. R. R.

Co., Texas Law-Journal, February 1, 1882, p. 312, Presiding Judge Walker said: “ ¡Neither the one kind nor the other being given by the common law, the plaintiff acquires his right of action for the damages he claim to the terms of that law which sanctions its recovery.

In order to recover in actions of this character, the plaintiff must frame his petition for exemplary damages with reference to the distinguishing elements which characterize it; he must set up facts which, if true, entitle him to such damages.” To entitle a party to a recovery for either the actual damages awarded by the statute, or exemplary damages given by the constitution, he must not only allege such facts as entitle him to the damages sought, but he must sustain such allegations by competent ■ evidence.

In this case there is no evidence to sustain the verdict for exemplary damages; the burden was upon the appellee to show that the death of Lee Baker occurred through the willful act or willful omission of the appellant. It might be conceded that the evidence sufficiently shows that the death was caused by the negligence or carelessness of the employees and agents of the appellant; this, however, would only entitle the appellee to a recovery for actual damages, if any were sustained.

And though it amounted to gross neglect, that "would not change the result under the constitution then in force, for it "was only when the homicide was committed through willful act or willful omission that a right to exemplary damages accrued. That, however, is different under the present constitution; now, if the homicide be committed through willful act or willful omission or gross neglect, a right of action accrues for exemplary damages. Const. 1816, General Provisions, sec. 26. In this particular we conclude that the court erred in overruling appellant’s motion for a new trial.

There is another fatal objection to the judgment awarding exemplary damages, which is fundamental. By the terms of the constitution, only the surviving husband, widow or heirs of the body of the person whose death occurred by such willful act or omission are entitled to maintain actions for and recover exemplary damages for such homicide. It will not, we apprehend, be seriously claimed that the appellee, Spencer Baker, is heir of the body of his son, Lee Baker. That term has a well-defined meaning at common law, and includes only the children begotten by the person.

That, too, is the generally, and we might add universally, accepted signification of the term, when used in common parlance. It is only those persons to whom the right is given that can maintain the suit under the constitution for exemplary damages.

Under the statute then in force, the father could maintain an action for actual damages for the death of his son, provided such actual damage is shown to have resulted to him by reason of such death; for there the right of action is given to the “ surviving husband, wife, child or children, and parents of the person whose death shall have been so caused.” The other errors presented, in view of recent decisions of the supreme court, need not be considered; some of them, at least, will not likely occur upon another trial. We conclude that the judgment ought to be reversed and the cause remanded.

Reversed and remanded [Transferred to Tyler, and opinion delivered November 13, 1882.]