Graham v. Franco
| Decision Date | 08 November 1972 |
| Docket Number | No. B--2997,B--2997 |
| Citation | 488 S.W.2d 390 |
| Parties | Bill GRAHAM et al., Petitioners, v. Rafael FRANCO et ux., Respondents. |
| Court | Texas Supreme Court |
Kleberg, Mobley, Lockett & Weil, Lev Hunt, Corpus Christi, for petitioners.
Allison, Maddin, White & Brin, Harry F. Maddin and James A. Smith, Corpus Christi, for respondents.
The writ of error was granted in this case to pass upon the constitutionality of a statute which provides: 'The recovery awarded for personal injuries sustained by either spouse during marriage shall be the separate property of that spouse except for any recovery for loss of earning capacity during marriage.' 1 We hold that the statute, as construed, is constitutional. We also hold that the acts of negligence of the husband as found by the jury are not imputed to the wife so as to bar her recovery.
This action arises out of a rear end collision. The car in which the plaintiffs, Mr. and Mrs. Franco, were riding was struck from the rear at night by a truck owned by Bill Graham and driven by Roosevelt Tillis. The Francos testified that Mr. Franco was driving down the right side of the highway with lights burning. As to the rear lights, the testimony was that they had recently been checked and found to be in good order. The truck driver testified that the Franco car was stopped on the highway with its lights off.
The jury found that the truck driver was negligent in failing to keep a proper lookout. It also found that the acts of Mr. Franco in stopping his car on the highway and in having the car upon the highway without a rear light burning constituted negligence. Each of such acts was found to be a proximate cause. There were no allegations or findings that the wife, Mrs. Franco, was guilty of negligence in any respect.
The jury found that Mr. Franco's damages were 'zero.' It also found that Mrs. Franco's medical expenses were $2,212.92; but her damages, resulting from the occurrence in question, were likewise found to be 'zero.' The trial court entered judgment for the defendants. 2
As to Mr. Franco, the Court of Civil Appeals affirmed. His contributory negligence was held to have barred his recovery, and the question of his damages became immaterial. As to Mrs. Franco, that court reversed and remanded for a new trial. It found that the answer to the damages issue of 'zero' was against the great weight and preponderance of the evidence. It recited, among other things, that she was in the hospital for 13 days, several of which were in intensive care. Her injuries, as well as the details of the accident, are set out in the opinion of the Court of Civil Appeals. 470 S.W.2d 429.
The Court of Civil Appeals, in holding the statute constitutional, held that a wife would be entitled to recover, as her separate property, damages for injury to her body, including disfigurement, loss or impairment of the use of the body, and physical pain and suffering, both past and present. It excluded from her separate recovery loss of earnings, medical expenses, and 'all other damages.' These latter items were held to be recoverable by the community of the husband and wife.
In arriving at a proper solution of this problem, it is necessary to begin with law as it existed at the time of the adoption of our Texas constitutions and to ascertain the purpose of those portions of the constitutions which provide for the separate and community estates. Generally speaking, our civil procedure and our rules of necessary parties were adopted from the English; but the substantive rights of the spouses in separate and community property were taken from Spain and Mexico. In England, the spouses were one; and generally, the husband was dominant. He generally controlled the property of the wife and most litigation. He, at least, was generally a necessary party.
The problem in this litigation begins with the early Texas case of Ezell v. Dodson, 60 Tex. 331 (1883). The court had before it the right of a wife to sue alone for her personal injuries growing out of an assault. The defendant filed exceptions on the ground that the husband was a necessary party. The wife refused to amend, and the trial court dismissed her suit. This Court affirmed. We have examined the transcript in that case, and the only question was one of necessary parties. The character of the recovery, if any, whether separate or community, was not at issue. Nevertheless, by dictum, the court added that the assault and battery upon the wife gave rise to a chose in action; that the chose in action was property; and since it was acquired after marriage and not by way of gift, devise or descent, it would be community property. Thus the dictum was that an injury to the wife constitutes an asset or claim of the community estate.
The holding of Ezell was correct on the parties question as the law then existed. But we are of the opinion that its dictum was wrong for the reasons set out below and as ably discussed by Dean Leon Green in his analysis of the Texas Death Act in 26 Texas Law Review 461 at 466 et seq.
After Ezell, the question as to the character of the recovery for personal injuries, whether separate or community, was not examined in depth. The courts simply followed the dictum of Ezell.
The basic question is the interpretation of Section 15 of Article 16 of the Texas Constitution. With the key words underscored by us, it provides,
'All Property, both real and personal, of the wife, Owned or claimed by her before marriage, and that Acquired afterward by gift, devise or descent, shall be the separate property of the wife; . . .'
This Court in Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925), held unconstitutional a statute which attemped to declare as separate property the rents and revenues from the wife's separate realty. The holding of that case is so limited; and in view of the history of our community property system and laws, it was a correct decision. The language of the opinion, however, is broad. The reasoning of the court in Arnold v. Leonard, and of cases following it, is one of implied exclusion; i.e., if property was acquired during marriage by any other means than gift, devise, or descent, it was and is necessarily community.
A much later case of this Court reverted to a test more akin to that prevailing under the Spanish and Mexican law, and several early opinions of this Court, dealing with community property. It applied an affirmative test; i.e., that property is community which is acquired by the work, efforts or labor of the spouses or their agents, as income from their property, or as a gift to the community. Such property, acquired by the joint efforts of the spouses, was regarded as acquired by 'onerous title' and belonged to the community. Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676 (1953); DeBlane v. Lynch, 23 Tex. 25 (1859); Smith v. Strahan, 16 Tex. 314 (1856); Epperson v. Jones, 65 Tex. 425 (1886); De Funiak, Principles of Community Property (1971) § 62; Moynihan, Community Property, 2 American Law of Property (1952) § 7.16. Under this reasoning, it is clear that the personal injuries to the wife are not 'acquired' by the efforts of the spouses and would not belong to the community. Thus in Norris v. Vaughan, supra, Justice Smith wrote for this Court that:
'The principle which lies at the foundation of the whole system of community property is, that whatever is acquired by the joint efforts of the husband and wife, shall be their common property.'
It is not necessary, however, to here make a decision on the correctness or applicability of Norris v. Vaughan and related cases and the concept of 'onerous title.'
The dictum of Ezell reasoned, as indicated, that if the wife were injured after marriage, this created a chose in action; that a chose in action (a cause of action for personal injuries) was property; that this property (chose in action) was acquired after marriage; and since it was not acquired by gift, devise or descent, it belonged to the community.
There is a large body of law, including cases by this Court, that a chose in action (a cause of action) for injuries to the Person (as contrasted to injuries to Property) was not regarded as Property at the time of the adoption of our constitution. This Court stated the general rule in G.H. & S.A. Ry. v. Freeman, 57 Tex. 156 (1882):
The Freeman case was followed in Stewart v. H. & T.C. Ry. Co., 62 Tex. 246 (1884).
At common law, a cause of action (chose in action) for damage to Property was property and could be transferred and inherited. But a cause of action for Personal injuries at common law was not inheritable or assignable. As is stated in McKay, Law of Community Property § 182 (2nd ed. 1925), and relevant here as speaking as of the time our constitution was adopted,
'By the clear weight of common law authority, a cause of action for personal injury is not property in any sense, nor for any purpose till it has been reduced to judgment; and the judgment, as property, takes its character as separate or common from the right violated in committing the wrong--the personal injury.'
The Ezell opini...
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