Opinion
Nos. 4414 and 4415.
Decided November 14, 1904.
1. — Practice in Supreme Court.
An appellee who, on reversal and remand for error in allowing him any damages, has asked the appellate court to render judgment against him instead of remanding, can not have writ of error on the judgment so entered at his instance. (P. 237.)
2. — Refusal of Writ of Error Explained.
In refusing writ of error herein the Supreme Court has not passed on the correctness of the ruling of the appellate court denying recovery by the parents of deceased for death of their son. (P. 237.)
Applications for writs of error to the Court of Civil Appeals for the Fifth District.
Action against the Texas Portland Cement and Lime Company for negligence, causing the death of A.G. Lee, brought by his widow, Pearl Lee, joined by the parents of deceased. All the plaintiffs were awarded damages. On defendants' appeal the recovery by the widow was allowed to stand and that by the parents reversed. Both the appellants and the parents of deceased, appellees, applied for writs of error.
Etheridge Baker, for applicant Texas Cement Company.
Hilbrant Scott and Cockrell Gray, for applicants.
There are two applications for writs of error in this case — one by the appellant in the Court of Civil Appeals, and the other by two of the appellees.
The suit was brought by the wife, the father and the mother of A.G. Lee to recover of the defendant cement and lime company for injuries resulting in his death. A trial before a jury resulted in a verdice and judgment in favor of the wife, Pearl Lee, for $2500, and in favor of the father, A.G. Lee, and the mother, Mary Lee, each for $500.
The Court of Civil Appeals first determined that the judgment as to Pearl Lee should be affirmed, but that as to A.G. Lee and Mary Lee it should be reversed and the cause remanded, unless they should remit the whole amount adjudged to them. Thereupon the attorneys for these two appellees filed a motion for a rehearing in which they prayed the court to reverse its ruling and to affirm the judgment as to them, and also requested the court, in case this should not be done, to render the judgment against them, to the end that they could have the ruling revised by this court. The Court of Civil Appeals thereupon granted the motion and rendered judgment that the parties last named take nothing by their suit.
We find no error in the proceedings pointed out in the application of the defendant company, and its application is therefore refused.
The application of A.G. Lee and Mary Lee is also refused, but for another reason. Having asked the court to render a judgment against them, they can not now complain that it is erroneous. We say this much merely for the purpose of having it understood that we do not pass upon the question decided by the Court of Civil Appeals adversely to the father and mother of the deceased — namely, whether there was any evidence to support a judgment in their favor.
Both applications are refused.
Applications refused.