Bell v. Phillips Petroleum Co.
| Decision Date | 22 March 1954 |
| Docket Number | No. 6393,6393 |
| Citation | 278 S.W.2d 407 |
| Parties | Mamie K. BELL et al., Appellants, v. PHILLIPS PETROLEUM COMPANY et al., Appellees. |
| Court | Texas Court of Appeals |
Gano & Gano, Fort Worth, for appellants.
Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellees.
This is an action brought by plaintiffs against the defendants for damages caused by an automobile collision. The plaintiff, Mamie K. Bell, and her husband, Charles B. Bell, had an automobile collision with one Clayton C. Graybill, an employee of Phillips Petroleum Company, from which collision Mamie K. Bell was injured and Charles B. Bell was so seriously injured he died a few hours thereafter. Mamie K. Bell, the surviving wife, and the other plaintiffs as the surviving heirs of Charles B. Bell, brought this suit for their personal damages. The case was tried to a jury upon special issues. The jury found that Clayton C. Graybill, driver of the Phillips automobile, failed to keep a proper lookout for the Bell automobile and that such negligence was a proximate cause of the collision in question. The jury found none of the plaintiffs were entitled to any recovery because of the death of Charles B. Bell. The jury found Mamie K. Bell did not fail to maintain that character or degree of lookout which would have been maintained by a person of ordinary prudence similarly situated under the circumstances and conditions then and there existing and found that $15,000 would fairly and reasonably compensate Mamie K. Bell for the injuries sustained by her as a proximate result of the collision in question. The jury found Charles B. Bell guilty of acts of negligence and such acts to be a proximate cause of the collision. The trial court granted judgment for the defendants and Mamie K. Bell brings this appeal.
This appeal only involves the act of the trial court in granting judgment for defendants and in refusing to grant judgment for Mamie K. Bell upon the verdict of the jury wherein it found that the driver of defendants' car was guilty of negligence in failing to keep a proper lookout and that such failure was a proximate cause of the collision and resulting injuries. Appellant's assignment of error being as follows:
'Point of Error'
'The trial court erred in overruling and denying the motion for judgment of the plaintiff, Mamie K. Bell, individually, and in sustaining the motion for judgment of the defendants and entering judgment thereon, thereby denying to such plaintiff recovery against such defendants, jointly and severally, in the amount found by the jury in her favor and in the amounts agreed upon between the parties during the trial without proof thereof, and in not entering judgment in her favor for such amounts,-for the reason that the negligence of her deceased husband is not imputed to her in bar of her individual and personal rights.'
It seems to be the rule in most of the states that under the common law practice, where the husband is killed in the same accident in which his wife is injured, the right of action accrues to the wife in her own right and the contributory negligence of the husband does not preclude a recovery. By Article 4615 of Vernon's Civil Statutes of the state of Texas, it was attempted to make compensation for personal injuries sustained by the wife to be her separate property but this statute has been declared unconstitutional. Northern Texas Traction Co. v. Hill, Tex.Civ.App., 297 S.W. 778; Teague v. Fairchild, Tex.Com.App., 15 S.W.2d 585.
The common law when not inconsistent with the constitution or laws of this state together with such constitution and laws is the rule of decision in this state. Since Article 4615 has been declared unconstitutional, it is of no further force and effect. The separate property of the wife must be determined by one of the four ways set out under Article 16, Section 15, of the Texas Constitution, Vernon's Ann.St., namely: Was the property owned or claimed by her before marriage, acquired afterwards by gift, devise, or bequest. It is well settled in this state that all other property acquired after marriage than that acquired as here stated is community property.
In this case Mr. and Mrs. Bell were riding in the same automobile and it was being driven by Mr. Bell. They were both injured at the same time and any rights they, or either of them, might have to recover for such injuries arose at the time of the collision. The chose in action or the right to sue for damages is community property in like manner, and the damages after recovery fall into the community. It is well settled in...
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