T. P. Ry. Co. v. Alexander , 13 Tex. Civ. App. 313 ( 1896 )

Opinion. — George Alexander, a married minor, suing by next friend, E.H. Alexander, prayed for judgment against the Texas Pacific Railway Co. for the sum of $750, for damages sustained from an alleged nuisance. Plaintiff alleged that on the 9th of September, 1893, defendant company killed a horse on its right of way a few hundred yards east of its depot at Grand Saline, Texas. That plaintiff with his wife occupied a house about sixty yards north of where the horse was killed, and that defendant negligently permitted said dead horse to remain on said right of way and rot and decay, and that vile, noxious and putrid odors from said horse rendered his residence uncomfortable and uninhabitable, making himself and his wife sick, and forcing them to leave home and stay away until said animal had decayed.

Defendant pleaded that it had no knowledge that such dead horse was offensive to plaintiff; was not notified by him that such was the case, and that if plaintiff suffered any inconvenience at all it was the result of his own contributory negligence and want of ordinary care in avoiding the consequences of such alleged nuisance. Trial on the 21st day of July, 1894, resulted in verdict and judgment for plaintiff in the sum of $466.66 2/3.

Appellant contends that a married minor suing by next friend can only recover the damages he has sustained, and can not recover the damages sustained by his wife when she is not a party nor represented by some one in her behalf. This position is not tenable. The damages suffered by the wife are a part of the community estate of the spouses, and for a recovery thereof the husband alone may sue. The husband suing in such a case would be entitled to recover all damages sustained by him, as well as his wife, and no judgment would be required, nor is any authorized, recognizing any interest in her, separate from the general recovery by the husband, and such a recovery would be a bar to any demand that she might subsequently urge against the defendant. The husband, who is represented by next friend, would be entitled to recover all that he could have recovered if sui juris and suing in his own name, and if such was the case, as we have shown, he could have recovered all the damages sustained by himself and wife.

It is said in Gulf, Colorado Santa Fe Railway v. Stryon,66 Tex. 425, "When it appears with certainty, as it does in this case, that the action is based on the right of the minor, that the relief sought is such as the minor alone would be entitled to on the facts pleaded, and that this is sought for the use and benefit of the minor, we are of the opinion that the minor is the real plaintiff, whatsoever may be the formula used."

The husband, whether a minor or of contracting age, has, by reason of that relationship, the authority to sue for the recovery of all the community interest, and when represented by next friend, the extent of the right of his recovery is no less, but is equal to what it would be if he alone was maintaining the action. We do not care to discuss any of the other questions presented in appellant's brief, but, however, will say that we have carefully considered them and find no reversible error. Therefore the judgment below is affirmed.

Affirmed.