Northern Texas Traction Co. v. Hill

• Decision Date: 07 July 1927
• Docket Number: (No. 2001.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 297 S.W. 778
• Parties: NORTHERN TEXAS TRACTION CO. v. HILL et al.
• Court: Texas Court of Appeals

297 S.W. 778

NORTHERN TEXAS TRACTION CO. v. HILL et al.

(No. 2001.)^*

Court of Civil Appeals of Texas. El Paso.

July 7, 1927.

Rehearing Denied August 17, 1927.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Suit by Mrs. Nettie Hill and another against the Northern Texas Traction Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Thompson, Knight, Baker & Harris, of Dallas, for appellant.

Miller & Godfrey and Geo. Sergeant, all of Dallas, for appellees.

PELPHREY, C. J.

Appellee, joined by her husband, T. A. Lambert, originally filed this suit in the Sixty-Eighth district court of Dallas county, Tex., against appellant. She thereafter, under the name of Mrs. Nettie Hill (joined by her husband, R. H. Hill), filed her second amended original petition.

She alleged in said second amended petition that at the time of the original filing of the suit she was the wife of T. A. Lambert, but that since said filing she had been divorced from said Lambert and had married R. H. Hill, who was joined as plaintiff.

Appellee alleged that on or about October 24, 1923, appellant owned, operated, and controlled a system of interurban electric railway extending from the city of Dallas to the city of Fort Worth; that on said date while riding in an automobile driven by her then husband, T. A. Lambert, an interurban car, owned and operated by appellant, collided with said automobile, and as a result of such collision appellee suffered certain injuries.

Appellee more particularly alleged that appellant was guilty of negligence per se in that it had failed to keep the crossing in the condition required by the ordinances of the city of Dallas, and that the motorman failed and neglected to warn appellee as the ordinances required, and that the motorman failed to keep a proper lookout for vehicles approaching the crossing where the accident occurred.

Appellant answered by general demurrer, special exceptions to appellee's petition, general denial, and contributory negligence on the part of appellee and her then husband, T. A. Lambert. Appellee filed a supplemental petition containing special exceptions and a general denial. The case was tried before a jury, and resulted in a verdict in favor of appellee for $7,500. From a judgment on said verdict the Northern Texas Traction Company has appealed to this court.

Appellant bases its appeal on 34 separate propositions, all of which we deem it unnecessary to discuss.

Appellant specially excepted in its first amended original answer to appellee's petition because T. A. Lambert, who was the husband of the appellee at the time of the accident, was not made a party plaintiff. This exception was by the court overruled, and appellant assigns error thereto. We agree with appellant in its contention and hold that T. A. Lambert was a necessary party plaintiff, and that appellant's exception should have been sustained.

The right to sue for damages for a tort is a chose in action and property, within the legal sense of that term. Ezell v. Dodson, 60 Tex. 331; 2 Bishop on Married Women, art. 271; Speer on Law of Married Women, art. 193. The right to sue, being property in the legal sense of the term, was the community property of appellee and T. A. Lambert, unless by law it is made her separate property.

Article 4615, Revised Statutes of 1925, reads as follows:

"All property or moneys received as compensation for personal injuries sustained by the wife shall be her separate property, except such actual and necessary expenses as may have accumulated against the husband for hospital fees, medical bills, and all other expenses incident to the collection of said compensation."

It is contended by appellant that this statute is in contravention of article 16, § 15, of the Constitution, and in support of its contention cites a decision of our Supreme Court in the case of Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799.

The constitutional provision is as follows:

"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 her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property."

As said by the court in Arnold v. Leonard, supra:

"But, the Legislature could not divest the husband of all interest in and to property which, under the Constitution, was guaranteed either to the community or to the husband's separate estate and use the same to enlarge the wife's separate estate beyond its constitutional limits. * * *

"It is a rule of construction of Constitutions that ordinarily when the circumstances are specified under which any right is to be acquired there is an implied prohibition against legislative power to either add to or withdraw from the circumstances specified. Koy v. Schneider, 110 Tex. 378, 218 S. W. 479, 221 S. W. 880; Dickson v. Strickland, 114 Tex. 176, 265 S. W. 1015; Ex parte [Vallandigham] Vallandingham, 1 Wall. 252 [17 L. Ed. 589]; Cooley's Constitutional Limitations, p. 99; 6 R. C. L. § 43. Hence, when the Constitution says that as to property, not owned or claimed by the wife at marriage, it becomes her separate property when acquired in one of three specified modes, the Legislature is prohibited from saying that property acquired after marriage in some other mode may also become the wife's separate property."

The court held in the above-cited case the acts of the Legislature, which undertook to make the rents and revenues from the wife's separate bonds a...