Charter Oak Fire Ins. Co. v. Few

• Decision Date: 11 June 1970
• Docket Number: No. 484,484
• Parties: The CHARTER OAK FIRE INSURANCE COMPANY, Appellant, v. Mary Frances FEW et vir, Appellees.
• Court: Texas Court of Appeals

Page 156

456 S.W.2d 156

The CHARTER OAK FIRE INSURANCE COMPANY, Appellant, v. Mary Frances FEW et vir, Appellees.

No. 484.

Court of Civil Appeals of Texas,

Tyler.

June 11, 1970.

Rehearing Denied June 25, 1970.

Ramey, Brelsford, Flock, Devereux & Hutchins, Donald Carroll, Mike A. Hatchell, Tyler, for appellant.

Smith, Johnson & McDowell, Howard S. Smith, William McDowell, Sulphur Springs, for appellees.

DUNAGAN, Chief Justice.

The plaintiff ¹, Mary Francis Few, joined pro forma only by her husband, Milburn Few, brought this suit to recover total, permanent workmen's compensation benefits allegedly due as the result of an injury sustained by her on June 20, 1968, during the course and scope of her employment at the Safeway Grocery Store in Mineola, Texas. The case was tried to a jury which found that plaintiff, Mary Frances Few, sustained an accidental injury in the course and scope of her employment; that such injury resulted in total disability beginning June 20, 1968; and that such total disability was permanent. The jury further found that defendant failed, refused and neglected to furnish plaintiff all reasonable medical services within a reasonable time after notice of injury; and that $808.00 would compensate plaintiff for medical services which she contracted on her own after said failure, refusal or neglect.

The trial court entered judgment on the above verdict for both Mary Frances Few and husband, Milburn Few, (and their attorneys) in the lump sum of $10,492.67 plus $808.00 for medical services and interest from the date of jdugment.

Defendant's five points of error raise two issues, to-wit: (1) the propriety of entering judgment for community property absent the joinder of one indispensable member of the community as a real party at interest in the litigation, and (2) the legal sufficiency of the evidence to support the jury's finding that defendant failed, refused or neglected to furnish plaintiff medical services as required by Article 8306, Sec. 7, Vernon's Tex.Civ.St.

The points do not challenge the compensability of plaintiff's injury or the duration of her disability. The jury's findings in that regard are conceded for the purpose of this appeal. Consequently, there is no need for us to discuss or summarize the facts surrounding the accident or the medical testimony regarding plaintiff's injury.

The plaintiff was married to Milburn Few at the time of trial, on the date of the accident, and had been so married for 28 years prior thereto.

When plaintiff brought this suit, she joined her husband as a formal or pro forma party only in that portion of her original petition which reads:

'Come now Mary Frances Few, joined Pro forma herein by her husband, Milburn Few, hereinafter called plaintiffs, complaining of The Charter Oak Fire Insurance Company, defendant herein, and would show unto the court and jury the following: * * *.' (Emphasis ours.)

The original petition also states that '* * * Unless otherwise specifically stated, the word 'plaintiff', has reference to Mary Frances Few throughout these pleadings', which makes it clear that no cause of action was stated nor any recovery sought by or for Mr. Few. Plaintiff's original petition was later supplemented, again designating Milburn Few as a pro forma party. Neither of these petitions (the original nor the supplemental) was ever amended to change Milburn Few's status form that of a pro forma party. 'Plaintiff' is in the singular throughout the pleadings and no where is the plural 'plaintiffs' used in the pleadings including the prayer. Mr. Few did not sign any of the pleadings on file in this cause.

However, the judgment rendered in the case awarded the recovery of compensation benefits not to Mary Frances Few alone but to both her and her husband as parties equal in right, the plural 'plaintiffs' being used throughout all decretal portions of the judgment. From this judgment defendant has appealed.

After jury verdict and before judgment was rendered, defendant by written motion complained to the trial court that Milburn Few was only a pro forma party to the action and was not entitled to judgment therein and that the court was without jurisdiction to grant judgment to him. Mrs. Few did not amend her pleadings and bring her husband into the litigation as a real party in interest. It again raised the same complaint in its motion for a new trial, both motions being overruled by the trial court.

A party to a lawsuit joined in a pro forma capacity only is considered to be joined as a matter of form only, usually to satisfy some requirement of pleading or procedure. See Yellow Cab & Baggage Co. v. Smith, 30 S.W.2d 697, 702 (Tex.Civ.App., 1930, writ dism.); Dixie Motor Coach Corporation v. Watson, 138 S.W.2d 314, 315 (Tex.Civ.App., 1940, no writ); 44 T.J.2d, p. 127, sec. 2. A pro forma party does not become a real party at interest in the litigation and he is deemed to have no recoverable interest in the subject matter of the suit. Rhodes v. Taliaferro, 119 S.W.2d 703, 705 (Tex.Civ.App., Ft. Worth, 1938, n.w.h.); Urban v. Field, 137 S.W .2d 137, 139 (Tex.Civ.App., San Antonio, 1940, n.w.h.); Roberts v. Magnolia Petroleum Co., 142 S.W.2d 315 (Tex.Civ.App., Beaumont, 1940, writ ref., 135 Tex. 289, 143 S.W.2d 79); Brown v. Jones, 134 S .W.2d 850, 852, (Tex.Civ.App., Amarillo, 1939, n.w.h.); Houston Gas and Fuel Co. v. Spradlin, 55 S.W.2d 1086 (Tex.Civ.App., Galveston, 1932, n.w.h.); Hill v. Kelsey, 89 S.W.2d 1017 (Tex.Civ.App., Dallas, 1935, writ dism.); Perkins v. Campbell, 63 S.W.2d 567 (Tex.Civ.App., Waco, 1933, n.w.h.); Speer's Marital Rights in Texas, Vol. 2, sec. 750, p. 576.

A 'protagonist' is any main or leading character or actor. Webster's New 20th Century Dictionary, Unabridged 2nd Ed.; Webster's Universal Unabridged Dictionary and Atlas of the World; and Thorndike Earnhart, Comprehensive Desk Dictionary. Milburn Few was one of several witnesses who testified upon the trial of the case. The substance of his testimony was that since the accident his wife had suffered pain and was not able to do the housework which she did before the accident in question. Applying the above definition to the record in this case, we do not consider Milburn Few a 'protagonist' in any sense of the word.

Affirmative relief cannot be granted to one who stands in a pro forma capacity, Lucas v. Dallas County, 138 S.W.2d 179, 181 (Tex.Civ .App., Dallas, 1940, n.w.h.); Perkins v. Campbell, supra, and a pro forma party remains as such until his status is changed affirmatively. Brown v. Jones, supra.

A husband who has been joined by his wife as a pro forma plaintiff only in suit to recover community property is a party who has an interest in the subject matter of the lawsuit and the recovery, sought but he is not a real party in interest in the litigation, he is only a nominal or formal party without any right ot control or direct the course of the suit as well as no right to recover anything by judgment entered in the cause.

Plaintiff contends that no fundamental error was committed by the trial court and therefore, even though this court should determine that Milburn Few was not a real party plaintiff, there is no reversible error because defendant failed to make timely objection that Milburn Few was not properly before the court.

Milburn Few whose status was pro forma throughout, recovered judgment as if he were a real party at interest. Milburn Few being a pro forma party only and not a real party at interest, the award of affirmative relief to him was not only error, Lucas v. Dallas County, supra, it was fundamental error. Mays & Mays v. Flattery, 252 S.W. 860 (Tex.Civ.App., El Paso, 1923, writ dism.); Urban v. Field, supra. In Hill v. Kelsey, supra, the court said '* * * while the absence of the husband as a real party might have been raised by plea in abatement or special exception, the defendant is not relegated to that method of raising the issue, but could reach it just as effectively by * * * suggestion of fundamental error on appeal, or otherwise; indeed it became the duty of the trial court itself to refuse to proceed to judgment whenever the omission came to its knowledge. * * *' See Rhodes v. Taliaferro, supra. The trial court could not determine Milburn Few's interest in the benefits which accrued to Mary Frances Few without him being a real party at interest. National Educators Life Insurance Company v. Master Video Systems, Inc., 398 S.W.2d 358, 366 (Tex.Civ.App., Corpus Christi, 1967, writ ref., n.r.e.).

Workmen's Compensation benefits are community property to the extent that they represent disability which accrues during marriage. Piro v. Piro, 327 S.W.2d 335 (Tex.Civ.App., Ft. Worth, 1959, writ dism.); Speer's Martial Rights in Texas, Vol. 1, p. 638, sec. 432; 30 T.J.2d, p. 131, sec. 74; Pickens v. Pickens, 125 Tex. 410, 83 S.W .2d 951, 953 (1935); Glens Falls Insurance Co. v. Yarbrough, 369 S.W .2d 640, 642 (Tex.Civ.App., Waco, 1963, n.w.h.). This court in General Insurance Company of America v. Casper, 426 S.W.2d 606, writ ref., n.r.e., 431 S.W.2d 311, held that any portion of compensation benefits that accrue to an employee during marriage is community property in which claimant and spouse have joint interest. Since Milburn Few was married to Mary Frances Few when her total, permanent disability began, he was the legal owner of any compensation benefits due for his wife's disability to the extent of his community interest therein, and he was a necessary and an indispensable party to any suit for the recovery of such benefits; therefore, it was error to award the Whole of the community property recovered herein without his joinder as a real party. General Insurance Company of America v. Casper, supra, and cases cited therein; see Belt v. Texas Co., 175 S.W.2d 622 (Tex.Civ.App., Amarillo, 1943, writ ref.); 67 C.J.S. Parties § 1(3), p. 892; 44 T.J .2d, sec. 3, p. 131; Travelers Insurance Company v. Jacks, 441 S.W.2d 312,...