March v. Walker

Citations

• 48 Tex. 372

Syllabus

<p>1. Statute construed.—Act of February 2, 1860, (Paschal’s Dig., 15, 16,) authorizing “heirs * * * to sue for and recover damages where death * * * has been caused by wrongful act,” &e.</p> <p>2. Same.—Section 30 of article 12 of Constitution of 1869, does not repeal the act of February 2, 1860.</p> <p>3. Damages for causing death by wrongful act.—The language of-the statute, (Paschal’s Dig., 16,) “ damages proportioned to the injury resulting from such death,” is the same as in the English statute, and it is well settled, that the damages given by such statutes are measured by the pecuniary injury to the respective parties entitled, including the loss of prospective advantage.</p> <p>4. Same.—The measure of damages is not the same as when a party himself sues for injuries received, and recovers compensation for physical and mental suffering.</p> <p>5. Same—Willful act.—The Constitution of 1869 left the statute of February 2, 1860, in force; but in cases which were the result of willful act or omission, involving that degree of moral delinquency which, on settled legal principles, renders exemplary damages appropriate, it allowed to the husband, or widow and children, such damages, in addition to their pecuniary loss.</p> <p>6. Pleading.—In a suit by minor children for damages under said act, the objection that the petition failed to allege that there were no surviving parents or widow, is not available under a general exception to the petition.</p> <p>7. Limitation—Suit by guardian.—A guardian of children may bring such suit under the act of February 2, 1860, although over three months had elapsed after the act or omission.</p> <p>8. Proof of guardianship.—In an action by a guardian where guardianship is denied, the record not showing that any attention was called to the absence of proof of guardianship, and no assignment of errors pointing to the defect, this court will consider the plea as waived.</p> <p>9. Special guardian.—The court calls attention to the abs