Houston Oxygen Co. v. Davis

• Decision Date: 04 March 1942
• Docket Number: No. 1892-7826.,1892-7826.
• Citation: 161 S.W.2d 474
• Parties: HOUSTON OXYGEN CO., Inc., et al. v. DAVIS et al.
• Court: Texas Supreme Court

161 S.W.2d 474

HOUSTON OXYGEN CO., Inc., et al. v. DAVIS et al.

No. 1892-7826.

Commission of Appeals of Texas, Section B.

March 4, 1942.

Rehearing Denied April 29, 1942.

Error from Court of Civil Appeals of Sixth Supreme Judicial District.

Action by Pearl Davis, for herself and as next friend of her minor son, and another, against the Houston Oxygen Company, Incorporated, and another, for damages resulting from injuries sustained by the minor in a collision between a truck and an automobile in which the minor was riding, wherein the defendants filed a cross-action naming the driver of the automobile as cross-defendant. To review a judgment, 145 S.W.2d 300, affirming as reformed the judgment of the District Court, the defendants bring error.

Reversed and remanded for another trial.

Vinson, Elkins, Weems & Francis, of Houston, L. B. Hightower, III, of Beaumont, C. M. Hightower and C. C. Kirkpatrick, both of Houston, and V. A. Collins, of Livingston, for plaintiffs in error.

Campbell & Foreman, of Livingston, for defendants in error.

TAYLOR, Commissioner.

Pearl Davis, joined by her present husband, Johnie Davis, filed this suit against Houston Oxygen Company, Inc., and Oliver O. Stanbury, for damages for injuries sustained by Charles Applebhy, Pearl's minor son, who, according to undisputed testimony, was by a former husband. The suit was on behalf of plaintiff for herself and as next friend for Charles. The jury returned a verdict for the mother for $4,000 and for $16,000 for the boy and judgment was rendered accordingly, except that part of the decree which directs one-half of the sum awarded in favor of the boy to be paid the attorneys representing plaintiffs as their attorney's fees and that the remaining one-half be delivered to the district clerk to be held for the minor until same can be paid over to him upon proper order of court. The Court of Civil Appeals affirmed the judgment in all things, except as to the order directing payment of one-half of the minor's recovery to plaintiff's attorneys. 145 S.W.2d 300. Defendants' assignment of error complaining of the action of the trial court in that respect was sustained, but the trial court's judgment, according to the transcript of the proceedings in the Court of Civil Appeals, was "in all things affirmed." This discrepancy in the record passes out of the case upon this appeal, however, under our view that it is necessary to reverse and remand the cause for lack of a necessary party.

The writ was granted upon application of defendants on the following assignment of error: "It appearing from the undisputed evidence * * * that the father of the minor, Charles Applebhy, was alive and that he had been divorced from the mother * * *, the father of the minor * * *, being under the legal duty of supporting * * * (him) during his minority, had an interest in the recovery and was therefore a necessary party to the suit, and when this was developed * * * the court should have continued the case and required that the father * * * be made a party."

It appears from the testimony that the minor (a colored boy) was fourteen years of age when injured; that the father, Charles Applebhy, and the minor's mother were once married, but divorced; and that the mother has been married to her present husband since the minor was a small boy. The father, now living at Abilene, Texas, was not made a party to the suit. The Court of Civil Appeals held that on the undisputed facts the mother was entitled to her son's services and earnings during minority and that she, for this reason, was entitled to sue for and appropriate as her separate property the damages she sustained on account of the injuries received by him. It was the view of the court also that the evidence shows the minor was abandoned and emancipated by his father.

Defendants contend that the father, being charged with the legal duty of supporting and maintaining his son during his minority, has the correlative right to his services during minority and for this reason was a necessary party to the suit. We sustain that portion of the assignment which alleges the father should be made a party to the suit and that the trial court erred in not so requiring. Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 15 A. L.R. 564; Hartman v. Chumley, Tex.Civ. App., 266 S.W. 444; Belstrom v. Belstrom, Tex.Civ.App., 144 S.W.2d 614, writ dismissed; Weinhold v. Hyde, Tex.Civ.App., 294 S.W. 899; Trinity County Lumber Co. v. Conner, Tex.Civ.App., 187 S.W. 1022. In the present record there is no pleading that the minor's father and mother are divorced, and, if divorced, what the decree provided with respect to the custody and maintenance of the minor. Nor is there any pleading as to whether the father failed to contribute to his support. In other words, there is no pleading of any kind touching the minor's father. The Court of Civil Appeals erred in sustaining the action of the trial court in not requiring that the father be made a party. We are not to be understood in this connection, however, as here determining that the father has an interest in the minor's earnings regardless of what may be shown upon another trial. However, since ordinarily during marriage the only person authorized in this state to sue for damages suffered by the minor during minority (the husband having the management of the community property) is the father, there must be both pleading and proof, when the suit is brought by the mother alone, to bring the case from under the general rule referred to so that binding effect may be given the judgment. McIntire v. Chappell, 2 Tex. 378; Hillsboro Cotton Mills v. King, 51 Tex.Civ.App. 518, 112 S.W. 132, and authorities there cited.

Defendants contend that in event it is necessary that Charles Applebhy, the minor's father, be made a party, then the judgment should be reversed only as to the recovery awarded the mother, and affirmed as to that awarded the minor. This is not the rule, ordinarily, as to cases in which the different causes of action grew out of the same acts of negligence and separate recoveries depend upon the same evidence, especially as to the parties who once participated in the trial without objection to joinder. Schumacher Co. v. Shooter, 132 Tex. 560, 124 S.W.2d 857. If some new element is injected upon another trial, however, bearing upon the question, we will not be precluded from further considering the matter.

Defendants contend that the courts below erred in holding inadmissible a statement offered by them, made (according to their testimony) by Mrs. Sally Cooper shortly before the accident occurred. Mrs. Cooper testified that on the date of the accident a Plymouth...