H. H. Rowland & Bro. v. Murphy

Citations

• 66 Tex. 534
• 1 S.W. 658
• 1886 Tex. LEXIS 558

Syllabus

<p>1. Action for damages—Limitation—Amendment—A damage suit for injury to a store and its contents was filed within two years after the alleged injury. Heldy an amendment more specifically describing the property but setting up no new cause of action, could be filed after two years had elapsed. s</p> <p>2. Negligence—Negligence, in one sense, is a quality attaching to acts dependent upon and arising out of the duties and relations of the parties concerned, and is as much a fact to be found by the jury as the alleged acts to which it attaches by virtue of such duties and relations. (Railway Company v. Murphy, 46 Tex., 366.)</p> <p>3. Same—Pleading—Demurrer—Neither a general nor special demurrer should be sustained to apetition stating facts from which the court or jury trying the cause may find that negligence existed. See opinion for petition stating such facts.</p> <p>4. Damages to community property—Parties to action—Survivor—Practice—A suit for damages was instituted by a merchant for the destruction of his storehouse and injury to his stock. The store and lot belonged to the community estate of himself and his deceased wife. Held:</p> <p>(1) Plaintiff was a tenant in common with the children of himself and wife, as to the house and lot, and could not maintain an action to recover for himself the entire damages done to the comom estate. (May v. Slade, 24 Tex., 205.)</p> <p>(2) That the premises were used before and after the death of the wife as a place of business, might entitle the husband to recover for injury to the right of present possession, but the children, to the extent of their present right to a future possession, suffered injury, and their cause of action could not be barred by a judgment, in favor of their father.</p> <p>(8) The fact that the father erected upon the lot a better house than the one est.royed, could not affect the children’s right of action,</p> <p>(4) A failure to file a plea in abatement to the defect of parties did not deprive efen