Aetna Ins. Co. v. Richardelle

• Decision Date: 29 August 1975
• Docket Number: No. 972,972
• Citation: 528 S.W.2d 280
• Parties: AETNA INSURANCE COMPANY, Appellant, v. Anthony RICHARDELLE et ux., Appellees.
• Court: Texas Court of Appeals

Page 280

528 S.W.2d 280

AETNA INSURANCE COMPANY, Appellant, v. Anthony RICHARDELLE et ux., Appellees.

No. 972.

Court of Civil Appeals of Texas, Corpus Christi.

Aug. 29, 1975.

Rehearing Denied Oct. 16, 1975.

Steven W. Stark, Cox, Wilson, Black & Stark, Jeffrey D. Roerig, Brownsville, for appellant.

Reynaldo G. Garza, Jr., Carinhas & Cuningham, Brownsville, for appellees.

OPINION

BISSETT, Justice.

This is a suit by an insurance company against the parents of a minor to recover damages caused when the minor set a residence home on fire. Aetna Insurance Company filed suit against Anthony Richardelle and wife, Mrs. Anthony Richardelle, to recover $5,000.00 which it had previously paid to Mr. and Mrs. Gordon Schultz as a result of the Schultz home being damaged by a fire which was set by Gary Richardelle, the minor son of Mr. and Mrs. Richardelle. Trial was to a jury. It was found that Gary Richardelle set fire to the home in question and that he acted maliciously and wilfully in setting such fire. Plaintiff moved for judgment on the verdict, and defendants filed a motion for judgment non obstante veredicto. The trial judge denied plaintiff's motion, and granted defendants' motion. A take nothing judgment in defendants' favor was rendered on October 25, 1974, and plaintiff has duly perfected an appeal from that judgment.

Plaintiff, in its petition which was filed on January 2, 1974, alleged that it had insured the Schultz home (and its contents) against fire; that Gary Richardelle, a child of defendants, who was born on May 3, 1961, set fire to the Schultz home on July 31, 1972; that the home and its contents sustained damages because of the fire; that the minor child acted maliciously and wilfully in setting the fire; and that plaintiff paid Mr. and Mrs. Schultz more than $5,000.00 for the damages sustained by them as a result of the fire. Plaintiff prayed for a recovery of $5,000.00, plus court costs and reasonable attorney's fees.

The case reaches us upon an agreed statement of facts. Gary Richardelle (Gary) is a male child. He was born on May 3, 1961. Defendants are his parents. On July 31 1972, Gary set fire to the home of Mr. and Mrs. Gordon Schultz, which caused more than $5,000.00 damage to their personal and real property. Gary acted wilfully and maliciously in setting the fire. Plaintiff, prior to the fire, had insured the home of Mr. and Mrs. Schultz and its contents against fire, and after the fire, paid them more than $5,000.00 for the damages suffered by them as a result of the fire. It was agreed that $500.00 constitutes a reasonable attorney's fee for plaintiff.

On the date of the fire, Gary was eleven (11) years of age. At that time, Tex.Rev.Civ.Stat.Ann. Art. 5923--1 was in full force and effect. It, in part, provided:

'Section 1. Any property owner . . . shall be entitled to recover actual damages suffered from the parents of any minor under the age of eighteen (18) years and over the age of ten (10), when such minor maliciously and wilfully damages or destroys property, real, personal or mixed, belonging to such owner. . . .'

The statute was repealed by Acts 1973, 63rd Leg., Ch. 543, p. 1411, when Title 2 was added to the Texas Family Code.

Section 4 of Title 2 to the Texas Family Code, in part, provides:

'(a) This Act takes effect on January 1, 1974, and governs all proceedings, orders, judgments, and decrees in suits and actions brought after it takes effect . . ..'

Included in Title 2 to the Texas Family Code is Section 33.01, which reads as follows:

'A parent or other person who has the duty of control and reasonable discipline of a child is liable for any property damage proximately caused by:

(1) the negligent conduct of the child if the conduct is reasonably attributable to the negligent failure of the parent or other person to exercise that duty; or

(2) the wilful and malicious conduct of a child who is at least 12 years of age but under 18 years of age.'

Plaintiff contends that the jury findings entitles it to judgment against the defendants despite the provisions of Section 33.01 of the Texas Family Code. It argues that on July 31, 1972, when the fire which gave rise to its asserted cause of action occurred, Art. 5923--1, V.A.C.S., provided for absolute liability of the parents for the wilful and malicious torts of their children under the age of 18 and over the age of 10; that it had a vested right to recover damages up to $5,000.00 from defendants upon proving the parent-child relationship between them and Gary; and that Gary, then 11 years of age, committed a wilful and malicious tort which resulted in damages to plaintiff. While plaintiff does not challenge the constitutionality of Tex.Family Code Ann. § 33.01 (1973), by a formal point of error, it does claim that the judgment which was entered by the trial court, in effect, made that Section of the Texas Family Code operate retroactively against it, in violation of Tex.Const. Art. I, § 16, in that its vested right 'to proceed against the parents of ten (10) and eleven (11) year old children' for wilful and malicious torts committed by them while Art. 5923--1, V.A.C.S, was in force, was destroyed.

On the other hand, defendants take the position that the Legislature has not destroyed any of plaintiff's 'vested rights', and that the enactment of Title 2 to the Texas Family Code and the repeal of Art. 5923--1, V.A.C.S., did not affect plaintiff's Right to sue either the minor child or defendants, or both the child and the defendants, for damages caused by the torts of the minor child, Gary. They say that this case is governed by the law which was in effect at the time suit was filed, not the law which was in effect at the time the tort was committed.

As a general rule, statutes operate prospectively, but they may act retrospectively when it is apparent that such was the intention of the Legislature, provided no impairment of vested rights results. Cox v. Robison, 105 Tex. 426, 150 S.W. 1149 (1912); Jenckes v. Mercantile National Bank at Dallas, 407 S.W.2d 260 (Tex.Civ.App.--Dallas 1966, writ ref'd n.r.e.). 'Mere retroactivity is not sufficient to invalidate a statute.' Texas Water Rights Commission v. Wright, 464 S.W.2d 642, 648 (Tex.Sup.1971).

A retroactive law is one which is intended to act on things that are past. A statute which takes away or impairs vested rights acquired under existing laws, or creates new obligations, imposes new duties, or adopts new disabilities in respect to transactions or considerations already past, cannot be upheld. McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898 (1955). Retroactive laws have usually been upheld if the change is merely a change in a remedy, and condemned if the change is a change that destroys a vested right. Texas Water Rights Commission v. Wright, supra.

Unless otherwise inhibited by either the State or Federal Constitutions, the Legislature may change existing laws, both statutory or common, at its pleasure, but in so doing, it may not deprive a person of a property right theretofore acquired under existing law. Those rights are designated as vested rights, and to be vested, a right must be more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand, or a legal exemption from the demand of another. If, before a right becomes vested in a person, the law upon which it is based is repealed, that particular person no longer has a remedy to enforce his claim, and if final relief has not been granted to him on the enforcement of a demand before such repeal, then no relief can be granted on his demand after the effective date of the repeal. City of Dallas v. Trammell, 129 Tex. 150, 101 S.W.2d 1009 (1937); 12 Tex.Jur.2d, Constitutional Law, § 116.

No person has a vested right to a particular remedy accorded by law, either at common law or by statute. Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556 (1916); Du Pre v. Du Pre, 271 S.W.2d 829 (Tex.Civ.App.--Dallas 1954, no writ history); 12 Tex.Jur.2d, Constitutional Law, § 118.

The Supreme Court of Texas, in Dickson v. Navarro County Levee Imp. Dist. No. 3 et al., 135 Tex. 95, 139 S.W.2d 257 (1940), said:

'It is almost...