Wright's Administratrix v. Donnell, 34 Tex. 291

Wright's Administratrix v. Donnell

34 Tex. 291 | Tex. | 1871

Walker, J.

Donnell is-the son-in-law of James Wright, deceased, whose wife is also. dead. The appellant is the administratrix *304and sole surviving child of Dr. James Wright. This suit was brought in the district court, after the death of Mrs. Donnell, and also of her brother Thomas, who died in 1864, Mrs. Donnell having died in 1865. Dr. James Wright is also dead, and Mrs. Gillespie, the appellant, is the survivor of the family. It appears that Dr. Wright had purchased a plantation upon which there was not much improvement; that Donnell had married his daughter, and for about fourteen months after his marriage resided at Corpus Christi, when, for some reason or other, which does not appear from the evidence (nor is it material to the case), he returned to his father-in-law’s place with his wife, and appears to have made improvements, built several cabins, and assisted in building a dwelling house; and to have had the general superintendence and managment of the plantation. Mrs. Gillespie lived with her husband in Tennessee, and Thomas Wright was in the Confederate army from 1861 to 1864, when he died. The plaintiff sued for $9,525 76 of an itemized account, and claimed $5500 damages, and in the original petition set up an express contract, but appears to have abandoned this and sought to recover on an implied assumpsit. The defendant plead in reconvention, setting up an account by way of counter-claim. On the trial the jury gave the plaintiff a verdict for $7610. This was $1,915 76 less than the amount claimed upon account.

The court doubtless erred in charging the jury that they might give punitory damages, if they found that Wright had acted maliciously and deceitfully toward Donnell. Wright had died before the trial. In Rippey v. Miller, 11 Iredell, 247, it was held, that, in an action against the representative of a deceased, who had committed a trespass on the property of the plaintiff, the plaintiff cannot, no matter how aggravated the trespass may have been, recover vindictive damages.

On this point there has been some discussion between Professor Greenleaf and Mr. Sedgwick. The former contending that puni*305tory damages are intended as a personal punishment to the offender ; the latter that the object should rather be a lesson to the public. Whatever difference of opinion may exist as to the reason of the rule, we are of opinion that the rule itself is properly settled in Rippey v. Miller, and the instruction of the court was erroneous. But to this Verdict we must apply the rale laid down in Fitzpatrick v. Blocker, 23 Texas, 552. The court say: If it appear that the verdict is not objectionable, as having been rendered for exemplary damages, but that merely compensatory damages have been given, the fact that the court erroneously instructed the jury that they might find exemplary damages, without any sufficient basis therefor having been laid in the petition, is not a, ground for disturbing the verdict. The verdict was for nearly twQ thousand dollars less than the amount of the plaintiff’s itemized account. The evidence, it is true, is somewhat weak, and contradictory as to several of the items, but verdicts must not be disturbed because we may not give to the evidence the same force and weight which the jury may allow to it." (Latham v. Selkirk, 11 Texas, 321.)

The plaintiff in error urges strongly several objections to the charge of the court, and some of them apply with considerable force, but they should have been made at the time the.charge was given, and the court asked to give the proper charge. (See Farquhar v. Dallas, 20 Texas, 200; Powell v. Haley, 28 Texas, 52; Robinson v. Varnell, 16 Texas, 387.)

We do not think the court erred in refusing to give the charge as asked by the appellant’s counsel. We cannot adopt the . doctrine claimed. It is true that a rule has been maintained in many courts of high authority, that amongst near relatives, as, between father and son, uncle and nephew, suits shall not be maintained for services which are rendered on the ground of natural love and affection, or in expectancy of a future legacy, inheritance or devise ; and the reason of the rule is that the party rendering the *306services is generally more liberally rewarded for Ms services than he would he under an express contract' or an implied assumpsit. But we do not' think the relationship between father-in-law and son-in-law comes within this rule, and when the reason off the rule fails, the' rule itself' should cease. Oessante- rations legis, cessat ipsa lex: The- rule would be one of great hardness if applied: in this, cases Donnell was the son-in-law of Wright; his wife was childless and insane. She died,, terminating the family bond. His labor on Wright’s plantation, as a mechanic and otherwise, may (and there is proof to show, did',) build up an. estate for Wright. The daughter, who inherits all was away in a distant State with her family; and; for all that is shown by the record, did nothing toward helping her father to. accumulate a. fortune. Her brother and sister died childless, and' she is the sole, heir to. hen father and to them.

The case has been ably contested’. A jury has found a verdict whibh,. we think, comes as near a fair settlement (or more so) as we "could make between-the parties.

. The charges on both sides may have been extravagant, even unconscionable, but the jury have allowed for them. They heard the evidence from the mouths of'the witnesses, and are the Better able to give it the proper weight' which Belbngs to it, and" the errors of the court are-not such- as to entitle, the plaintiff" in error to a reversal".

But it was error to give a judgment for coin, and upon this the judgment would" be reversed but for the. offer off defendant in érrór that the judgment shall stand' corrected, and reformed in this particular, and'in consequence of this error the plaintiff below will not.be allowed' interest on the judgment until sixty days from the.issuing.of the mandate of this court.

With these corrections the judgment of the district court is-affirmed!.

Reformed and affirmed..