Williams v. Harris , 193 S.W. 403 ( 1917 )

The appellee filed his original petition in the district court of Hopkins county on August 12, 1914, to recover of the defendant, Thomas A. St. Clair, damages for wrongful acquisition of specific property by reason of fraud and deceit. The defendant, St. Clair, resided in Hopkins county, Tex., and made answer to the suit. The defendant, St. Clair, died April 1, 1916, before trial of the suit, leaving a will. The will named W. N. Williams as executor and was probated by the county court of Franklin county, and the estate is now being administered in that county. On August 14, 1916, the plaintiff in the suit filed his amended petition, suggesting the death of the original defendant, Thomas A. St. Clair, and praying that scire facias issue to the executor, W. N. Williams, requiring him to appear and defend the suit. The executor, W. N. Williams, filed a plea setting up that the estate of Thomas A. St. Clair is being administered in the county court of Franklin county, and asked as a plea of privilege that the venue of the cause be changed to Franklin county. The court overruled the plea of privilege, and this ruling is made the basis of the first assignment of error. The suit was not an original suit against the executor so as to make applicable subdivision 6 of article 1830, Vernon's Sayles' Statutes. The suit was pending against the testator, Thomas A. St. Clair, as defendant at the time of his death, and the executor, Williams, was made a party substitute upon the death of the defendant, under article 1888, Vernon's Sayles' Statutes. The article just mentioned is designed to prevent the abatement of and to continue the suit already instituted, and it is thought controls the venue in this case. The assignment is therefore overruled.

The appellant contends that the suit against the testator, St. Clair, abated by reason of his death and the court erred in not so holding because the cause of action was one purely for tort, which, by the common law, did not survive the death of the tort-feasor It is believed that the court did not err in the ruling complained of, for the action is one for damages for the wrongful acquisition of specific property by reason of fraud and deceit The personal actions which at common law die with the person are causes of action where the damages are personal in nature; as, for instance, anguish of mind, injury to character, deprivation of liberty, and bodily injury. Feary v. Hamilton, 140 Ind. 45, 39 N.E. 516; Gibbs v. Belcher, 30 Tex. 79; Railway Co. v. Goodman,20 Tex. Civ. App. 109, 48 S.W. 778; Stebbins v. Palmer, 1 Pick. (Mass.) 71, 11 Am.Dec. 146; Watson v. Loop, 12 Tex. 11. But where the damages sustained affect property rights or interest therein, the right of action survives against the executor or administrator. 1 Corpus Juris, p. 185 1 Cyc. p. 49; 1 R.C.L. p. 28; Railway Co. v. Smith, 35 Tex. Civ. App. 351,80 S.W. 247. As stated in Ke Payne's Appeal, 65 Conn. 407,32 Atl. at p 952, 33 L.R.A. 418, 48 Am. St. Rep. 215;

"The principle involved is: In the case of a tort directly resulting in the wrongful acquisition of property, the law imposes on the wrongdoer the duty of returning that property to the owner. This duty may be treated as a quasi contract, and the neglect to perform it may become a breach of such contract. In such case, the damage resulting from the tort is substantially the value of the property, and the damage resulting from the breach of contract is substantially measured in the same way; and so, for determining the question of survival, the substantially cause of action may properly be treated as founded in contract, although the form of action might sound in tort. But such principle cannot apply unless property is acquired."

The second and third assignments of error are therefore overruled.

It is thought that there is no reversible error in respect to the evidence complained of in the fourth, fifth, and seventh assignments of error, and they are overruled.

The court did not err in sustaining objection to the proof offered, as complained of in the eighth assignment of error. Railway Co. v. De Bord,21 Tex. Civ. App. 691, 53 S.W. 593; Boon v. Weathered. 23 Tex. 686; Johnson v. Brown, 51 Tex. 65.

It is believed that the court's charge correctly and clearly applied the law to the facts, and that assignments of error Nos. 9, 10, 11, 12, 13, 15, 16, 18, 20, 21, and 23 should be overruled.

The court's main charge and the special charges given fully covered the case it is thought, and there is no reversible error in the refusal of special charges complained of in the fourteenth, seventeenth, nineteenth, twenty-fourth, twenty-fifth, and twenty-sixth assignments of error.

Assignment of error No. 22 should be overruled, it is thought; for interest as an element of damages may be allowed in that character of cases. Watkins v. Junker, 90 Tex. 584, 40 S.W. 11.

The evidence made an issue of fact for jury, and the court did not err in refusing to give a peremptory charge; and it is therefore concluded that assignment of error No. 27 should be overruled.

The judgment is affirmed.