W. F. McGown v. International & Great Northern Railway Company, 85 Tex. 289

TARLTON, Judge,

Section B. —W. T. McGown, appellant, as the surviving husband of Susan M. McGown, instituted this suit against the appellee company in the District Court of Hays, on December 13, 1888. Appellant sought to recover the sum of $20,000 as actual and $20,000 as exemplary damages for personal injuries received by his wife, resulting, as he alleges, in her death.

The defendant’s answer consisted of a general demurrer, general denial, a special plea that the injury, if any, was due, not to the negligence of the defendant, but to that of the sleeping car company, its agents, or servants, in no way the agents or servants of the defendant; and finally a plea charging contributory negligence. The court sustained a special exception to the plea setting up the negligence of the sleeping car company, overruled the defendant’s general demurrer, and on the trial, which occurred September 6, 1889, instructed the jury to return a verdict for the defendant, which was accordingly done.

We have only to consider this question: Was the court, under the facts, justified in instructing the jury, that ‘ ‘ the evidence is insufficient to sustain the material allegations in the plaintiff’s petition,” and that they would return a verdict in favor of the defendant ? To make out a case it was incumbent on the plaintiff to establish by a preponderance of evidence, (1) that the death of his wife was caused by the negligence of the defendant, its agents, or servants; (2) that he was thereby actually damaged; or (3) that he was entitled to exemplary damages. 1. Was the death of Mrs.

McGown due to the negligence of the defendant, its agents, or servants P We find it unnecessary to detail the facts bearing on this question. It suffices to say, that while very meagre, they were such as to have required a submission of the question to the jury, if it alone had been involved. 2. If the death of the lady was due to the negligence of the defendant, was the plaintiff thereby actually damaged ? The character of action here ■brought by the plaintiff is purely statutory. Independent of the statute, such an action could not lie in any state of facts.

This statute (article 2899, Revised Statutes) limits the recovery to actual damages. Hence the idea of damages as “solatium,” or for sentimental reasons, such as one caused by grief or loss of society, is excluded. The damages contemplated are purely pecuniary and compensatory. They rest upon considerations such as the value of the services or the advantage in money reasonably to be expected by the survivor, if the deceased had lived. 7 Am. and Eng. Ry. Cases, 32, note. In this case there was no proof whatever of these elements of damage. It did not appear from the evidence that the services of Mrs.

McGown were of any value to the appellant, or that he had any expectation of pecuniary benefit from her. On account of the purely statutory character of the action, the doctrine of nominal damages must be held not to apply. 3. Was the plaintiff entitled to exemplary damages ? To justify such a recovery it must appear, that the death was due to the “ willful act or omission or gross negligence” of the corporation itself, or of its officers; or, if the act or negligence was that of a mere servant or employe, however willful or gross, that it was subsequently ratified by the corporation. Rev.

Stats., art. 2901; Railway v. McDonald, 75 Texas, 41. Appellant here charges ratification, because the employes were retained in its service by the company after service of the petition averring gross negligence on the part of the conductor. The truth of this petition was denied by the conductor. The retaining of a servant in its service by the corporation after it has been cited to answer a petition, the allegations of which, charging gross negligence, are denied by the servant, will not of itself constitute ratification.

On account of the entire absence of proof of damages, actual or exemplary, the court was correct in giving the charge complained of. The judgment should be affirmed. Affirmed. Adopted June 21, 1892.