City of San Antonio v. Wildenstein

• Citation: 109 S.W. 231
• Parties: CITY OF SAN ANTONIO v. WILDENSTEIN.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 11 March 1908
• Court: Texas Court of Appeals

Page 231

109 S.W. 231

CITY OF SAN ANTONIO v. WILDENSTEIN.^*

Court of Civil Appeals of Texas.

March 11, 1908.

On Rehearing, April 8, 1908.

Supplemental Opinion, April 16, 1908.

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by Mary Wildenstein against the city of San Antonio. Judgment for plaintiff, and defendant appeals. Affirmed.

Joseph Ryan, for appellant. T. J. Newton and Will A. Morriss, for appellee.

NEILL, J.

This is a suit by the appellee against appellant, to recover damages for personal injuries caused by the latter's negligence in failing to keep one of its streets in proper repair, a hole being in its sidewalk, in which plaintiff stepped and was injured. In her original petition, which was filed September 24, 1902, there is an absence of any allegation to show whether she was married or single when the accident occurred, or at the time the suit was brought. There is also an absence of such an allegation in her first amended original petition, which was filed April 1, 1907. The defendant's original answer does not appear in the transcript of the record, nor does it show when it was filed. Its first amended original answer was filed April 1, 1907. It, after excepting to plaintiff's petition, contains a plea in abatement, alleging that at the date of plaintiff's alleged injuries, and when this suit was instituted, she was a feme covert; and that, her husband not having been made a party, the suit should be abated. The amended answer also contains a general denial and a plea of contributory negligence. On the same day, plaintiff, in reply to defendant's plea in abatement, filed her first supplemental petition, in which, after excepting to defendant's plea in abatement because it was not verified by affidavit, she alleged that, when the suit was filed, and long prior thereto, she was living separate and apart from her husband, earning her living as a feme sole, and that her husband refused to join in the suit; that at the time a suit, which had been brought by her against him for a divorce, was pending, and that since she had obtained, by the suit, a decree of divorce from him, and that she is a single woman, and entitled to prosecute the suit without her former husband being made a party. On the day the supplemental petition was filed the defendant filed its first supplemental answer, containing the following special exceptions thereto: "(1) That plaintiff cannot now obtain leave to prosecute this suit alone, because her right of action is barred by the statute of limitations, if she ever had any such right. (2) That plaintiff cannot set the same up in a supplemental petition, but the same must be set up in original pleading and petition." It then alleges that plaintiff's husband, Chris Wildenstein, is a necessary party to the suit, and should be made a party to determine his interest therein; that therefore there is a nonjoinder of a necessary party. The prayer is that, should the exceptions be overruled, he be made a party defendant, and his right, if any he has, of recovery be adjudicated. On April 2, 1907, the defendant filed a trial amendment, in which it alleged that it had no notice of the alleged defect in the sidewalk, which was the property of one Piper, and leased by him to the San Antonio Brewing Association, and by such association to R. Bozzi, and that such parties were responsible for the defect, if any, in the sidewalk, and that, if plaintiff suffered any injury, it was caused by their negligence, and not by defendant's. The defendant's exceptions to plaintiff's petition and first supplemental petition were presented to and overruled by the court. The defendant's plea of nonjoinder was also submitted to and heard by the court without a jury, and overruled, and its prayer to make Chris Wildenstein a party defendant was denied. The cause then proceeded to trial before a jury, and after two witnesses had testified for plaintiff, and the third was under cross-examination, the court refused defendant leave to file a trial amendment, to which ruling it excepted. The trial proceeded, and resulted in a verdict and judgment in favor of the plaintiff for $5,000, from which this appeal is prosecuted.

Conclusions of Fact.

The evidence is reasonably sufficient to warrant the jury in finding the following facts: (1) That on July 25, 1902, plaintiff, while walking along the sidewalk on East Commerce street, in the city of San Antonio, stepped into a hole, and was thrown to the ground, and thereby sustained serious and permanent personal injuries. (2) That the defendant failed to use ordinary care and diligence in maintaining the sidewalk in a condition reasonably safe for the use of the public, and such negligence was the proximate cause of plaintiff's injuries. (3) That, if defendant did not actually know of such defect in the sidewalk, such defect had existed for such a great length of time, and was of such character, as to charge it as a matter of law with knowledge thereof and of its danger to pedestrians. (4) That it was at night when defendant stepped into the hole, and, it being dark, the sidewalk covered with water, and she unaware of the existence of such defect, she was not guilty of any negligence proximately contributing to her injuries. (5) That, by reason of the negligence of defendant in allowing such defect in the sidewalk, and the injuries proximately caused the plaintiff thereby, she has been damaged in the sum of $5,000.

Conclusions of Law.

1. It having been alleged in plaintiff's first supplemental petition that her husband had abandoned her, and had refused to join her in the suit, she was, upon proof of such allegation, authorized to institute and prosecute the suit without joining him as a party. Bennett v. Gillette (Tex. Civ. App.) 57 S. W. 302; Speer on Married Women, § 287.

2. Her husband having abandoned her and refused to join in the suit, it follows from our first conclusion of law that the court did not err in denying defendant's motion to dismiss the action because the husband was not made a party. There was no issue as to plaintiff's coverture when her injuries occurred, and when the suit was instituted, for the allegations in her pleadings, as well as the undisputed evidence, show that she was then covert. Nor was there any question about the facts that, when the case was tried, her marriage had been dissolved by a decree of divorce, and she was a single woman. Besides, it does not appear from the record that defendant requested that the issue of coverture be submitted to the jury but, on the contrary, it shows the matter was disposed of by the court without objection from either party.

3. There was no error in the court's overruling any of the special exceptions to plaintiff's first supplemental petition. Upon its face the original petition, as well as the first amended one, was good; and the defendant, in its first original answer, having for the first time pleaded in abatement the nonjoinder of her husband (which should have been considered waived by the long delay in setting it up), it was the proper mode of pleading, as prescribed by rule 5 of the district court (67 S. W. xx), for plaintiff to reply to it by a supplemental petition. Standifer v. Bond Hardware Co. (Tex. Civ. App.) 94 S. W. 144.

4. The sixth...