
    SAN ANTONIO PORTLAND CEMENT CO. v. GSCHWENDER.
    (No. 5774.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1917.)
    1. Master and Servant @=>258(18) — Action nor Death — Pleading — Negligence of Vice Principal.
    In action for damages for electrocution of plaintiff’s deceased upon turning an electric switch as commanded by his foreman, negligence of the vice principal in ordering deceased to throw the switch held sufficiently pleaded.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 833; Dec. Dig. @=> 258(18).]
    2. Appeal and Error @=>843(1) — Review.
    Where a case is reversed and remanded on other grounds, assignments of error attacking the sufficiency of evidence to sustain the judgment should not be discussed by the appellate court, in view of another trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3335, 3337-3341; Dee. Dig. @=>843(1).]
    3. Death @=>41 — Action — Necessary Parties.
    Rev. St. art. 4698, provides that in action for death damages shall be for the sole and exclusive benefit of the surviving husband, wife, children, and parents of the deceased person. Article 4699 provides that the action may be brought by all of the parties entitled thereto, or by any one or more for the benefit of all. Held, in such action by ⅜ surviving wife, where there was no allegation that the suit was instituted for the parents of deceased as well as for the widow, and it appeared on the trial that the parents were living, it was error to refuse postponement of the trial that they might be made parties; failure to have all the statutory parties joined going to the very foundation of the action.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 56, 57, 59; Dec. Dig. @=>41.]
    4. Death @=>41 — Action — Necessary Parties.
    In such case, knowledge by defendant before trial of existence of surviving parents of deceased does not relieve plaintiff from the duty to have them joined as parties.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 56, 57, 59; Dec. Dig. @=>41.]
    5. Death @=>1 — Presumption—Continuance of Life.
    Evidence in death action that parents of deceased were living in 1913 did not show that they were living in 1915.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 1-3; Dec. Dig. @=>l.j
    Error from District Co.urt, Bexar County; R. B. Minor, Judge.
    Action by Mrs. G. A. Gsehwender against the ,San Antonio Portland Cement Company. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    Arnold, Cozby & Peyton and Hertzberg, Barrett & Kercheville, all of San Antonio, for plaintiff in error. Ben H. Kelly and Chambers & Watson, all of San Antonio, for defendant in error.
   FLY, C. J.

This is a suit by the defendant in error, as the surviving wife of G. A. Gsehwender, to recover damages for his death, which it was alleged occurred while deceased, in the discharge of his duty as an employs of plaintiff in error, was turning a switch as commanded by his foreman. The trial was without a jury and resulted in a judgment for defendant in error in the sum of $7,000.

The first and second assignments of error are overruled. They assail the action of the court in basing the judgment on a finding that the vice principal was negligent in ordering deceased to throw the switch; because there was no pleading upon which to base the finding. The following quotations from the petition fully answer the assignments of error:

“Plaintiff alleges: That on or about March 23, 1915, while engaged in the performance of his duties as assistant electrician for the defendant, the San Antonio Portland Cement Company, and without fault on his part, the said G. A. Gsehwender received an electric shock from which he then and there died the same date. That said G. A. Gsehwender was an inexperienced hand, as defendant, the San Antonio Portland Cement Company, well knew, knowing little or nothing about the handling or effects of electricity, but that, notwithstanding this fact, said defendant through its chief electrician requested and directed the said G. A. Gsehwen-der to turn on a certain switch in its plant where it used and handled electricity in its business, and the said G. A. Gsehwender, acting under the said order and directions of his superior as was his duty to do, and being unaware of any danger by reason of ignorance or inexperience which said defendant well knew, and from the further fact that to all appearances there appeared no danger therein, he took hold of some switch or lever or other instrument unknown to plaintiff and received the electric shock that caused and produced instant death. That, just before the death of said Gsehwender, the defendant, San Antonio Portland Cement Company, was repairing some of its machinery, preparatory to using- an electric motor connected with and controlled by a switch through wires on which electricity was transmitted, and that said Gsehwender was directed and instructed by said defendant to pull or turn on a certain switch that said motor might be tested out and that it was his duty to do so, and, as he undertook to do so, he in some manner unknown to plaintiff came in contact with a live wire, charged with electricity of sufficient strength and voltage, which then and there caused his death without fault on his part.”

The allegations of the order being given are plain and clear. In the sixth paragraph of the petition, referring to the different acts of negligence set out in the two paragraphs immediately preceding, it was alleged:

“That the above acts, omissions, and derelictions of said defendant as set out in the last two preceding paragraphs were the proximate cause of the death of deceased,” etc.

In the paragraph immediately preceding it is alleged that the order was given and obeyed by deceased.

The third, fourth, fifth, and sixth assignments of error attack the sufficiency of the evidence to sustain the judgment, and in view of another trial should not be discussed by this court.

The seventh and eighth assignments of error assail the action of the court in refusing an application of the plaintiff in error to postpone the trial until other necessary parties to the suit should be brought in as parties. Article 4698, Revised Statutes, provides that the action for damages for the death of a person “shall be for the sole and exclusive benefit of the surviving husband, wife, children and parents of the person whose death shall have been caused, and the amount recovered therein shall not be liable for the debts of the deceased.” Article 4699 provides:

“The action may be brought by all of the parties entitled thereto, or by any one or more of them for the benefit of all.”

In this case there was no allegation that the suit was instituted for the benefit of the parents of deceased as well as for the .widow, but it was for the sole benefit of the widow. Railway v. Pennington, 166 S. W. 464. The failure to have all the statutory'parties joined goes to the very foundation of the action. Railway v. Culberson, 68 Tex. 664, 5 S. W. 820.

It appears from a bill of exceptions taken by plaintiff in error that, after defendant in error had closed her case, plaintiff in error placed her on the stand and ascertained that the father and mother of the deceased were living at that time in Rayland, Ohio, and that plaintiff in error sought a postponement of the trial, in order that they might be made parties. The postponement was refused. The bill of exceptions was allowed, but appended thereto is what is denominated a qualification, in which it is stated that the attorneys for plaintiff in error knew on June 14, 1915, that defendant in error had sworn that she was married in March, 1913, and that the father and mother of deceased at that time lived in Martin’s Perry, Ohio. It would seem that the motion to postpone was overruled on the ground that plaintiff in error knew that the parties had not been made parties and that they were living in 1913. Of course, that was no ground for refusing the motion. The parents were necessary parties, and the fact that the plaintiff in error may have known of their existence before the trial did not lift the burden from the defendant in error - to have all necessary, statutory parties before the court. However, the testimony of defendant in error in June, 1915, did not show that the parents were then living, but that they were living in 1913. Railway v. Howell, 105 S. W. 560. Defendant in error, as disclosed by the record, on cross-examination swore: “Mr. Gschwender’s father and mother are living in Rayland, Ohio.” It has been held many times that the defendant in a death case has the right to have all interested parties included, and that, if it should be shown on a trial that parties have not been/included in the petition, the defendant should be accorded a postponement of the trial until all the parties could be joined in the suit. Railway v. Howell and Railway v. Pennington, herein cited; Railway v. Mertink, 101 Tex. 165, 105 S. W. 485. As said in Railway v. Wilson, 85 Tex. 516, 22 S. W. 578:

“It is not an open question in this court that, when the evidence develops the fact that the deceased * * ⅜ had other relatives who under the statute can share in the damages recovered for his death, the proceedings must be arrested until the pleadings are so amended that the suit can be conducted for the use of all of the beneficiaries.”

If the trial had been suspended for a short time, no doubt the parents could have been reached by telegraph, and their consent to be joined as plaintiffs obtained, and probably thereby another trial avoided.

Por the reason that the parents of deceased were not made parties, the judgment is reversed, and the cause remanded. 
      @=>For other cases see same topic and KEY-NUMBER in all itey-Numbered Digests and Indexes
     