Sustaita v. Valle , 38 S.W.2d 638 ( 1931 )

On Motion for Rehearing. As stated in the original opinion, Isidoro Garcia brought this action against appellant to recover damages for personal injuries sustained by him in an automobile accident occasioned by the negligence of appellant. Subsequently, and during the pendency of the suit, Garcia, the original plaintiff, died as a result of said injuries, whereupon his daughter, Senobia Valle, intervened, and, setting up the fact of the death of her father, continued to prosecute the suit in her individual name, upon the theory that the original cause of action survived to her as the sole heir at law of the decedent. She alleged that there was no administration upon the estate of the decedent, nor any necessity therefor. Upon the trial, however, she offered no proof of either of said facts, and those allegations stand unsupported by any evidence.

It is now well settled in this state, subject to certain clearly defined exceptions not applicable here, that, before heirs, as such, can maintain suit to recover upon a chose in action or other property belonging to the estate of their ancestors, they must both allege and prove that there is no administration pending upon the estate of the decedent, and no necessity for such administration. A petition which fails to allege those facts is subject to general demurrer, and, in the absence of affirmative proof of such facts, when alleged, the plaintiff cannot recover. 1 Tex.Jur. p. 66, § 45; Laas v. Seidel, 95 Tex. 443,67 S.W. 1015; Richardson v. Vaughan, 86 Tex. 93, 23 S.W. 640; Youngs v. Youngs (Tex.Civ.App.) 16 S.W.2d 426; Id. (Tex.Com.App.) 26 S.W.2d 191; Provident Life Accident Ins. Co. v. Johnson (Tex.Civ.App.)235 S.W. 650; Ry. v. Rogers, 15 Tex. Civ. App. 680, 89 S.W. 1112; Johnson v. Bank (Tex.Civ.App.)242 S.W. 293.

This rule was laid down in Texas generations ago (Green v. Rugely,23 Tex. 539; Giddings v. Steele, 28 Tex. 748, 91 Am.Dec. 336; Webster v. Willis, 56 Tex. 468), and has been uniformly enforced by our courts. It is clearly applicable in this case, for, while appellee alleged that there was no administration upon the estate, nor any necessity therefor, no evidence whatever was introduced to establish those facts. As was said in Laas v. Seidel, supra, and approved in many other cases, including the recent case of Youngs v. Youngs, supra, "If the plaintiff in this case had alleged that there was no administration upon the estate of the decedent, and no necessity for such administration, but had failed to prove it upon a trial, judgment must have been given for the defendant." The rule is founded upon clear and cogent reasons, some of which are well stated in Giddings v. Steele, supra.

Appellant's motion for rehearing must be granted, and the judgment reversed and the cause remanded.

On Second Motion for Rehearing. Appellee asserted and recovered upon two distinct and severable causes of action against appellant, first, for damages on account of physical and mental injuries and loss of time incurred by the decedent by reason of the negligence of appellant; second, for damages on account of the wrongful death of the decedent.

Damages recovered in the first case properly belonged to the estate of the decedent, and were therefore recoverable by appellee individually only in the absence of administration of the decedent's estate, or of a necessity therefor.

Damages in the second case, for the wrongful death of the decedent, were recoverable by appellee individually, since they were not subject to the debts of the decedent, but vested directly in appellee immediately upon the wrongful death of her father. Article 4675, R.S. 1925 (as amended by Acts 1927, c. 239, § 2 [Vernon's Ann.Civ.St. art. 4675]).

In this state of the record, and in view of the full development of the case upon a proper trial thereof below, we have concluded that the justice of the case requires that we reverse the judgment in so far as damages were awarded to appellee for physical pain and suffering and loss of time of decedent, and that the cause of action thereon be remanded for another trial, but in all other respects the judgment will be affirmed, at the cost of appellee.

Reversed and remanded in part, and in part affirmed.