Rhodes v. Taliaferro

• Citation: 119 S.W.2d 703
• Decision Date: 09 September 1938
• Docket Number: No. 13781.,13781.
• Parties: RHODES v. TALIAFERRO et al.
• Court: Court of Appeals of Texas

119 S.W.2d 703

RHODES v. TALIAFERRO et al.

No. 13781.

Court of Civil Appeals of Texas. Fort Worth.

September 9, 1938.

Appeal from County Court at Law No. 1, Tarrant County; Dave McGee, Judge.

Suit by Mrs. Sadie Taliaferro and others against Thomas C. Rhodes, for damages resulting from theft of the named plaintiff's automobile while it was parked in defendant's automobile parking lot. From an adverse judgment, the defendant appeals.

Reversed and remanded for another trial.

Rogers & Spurlock, of Fort Worth, for appellant.

George P. Gleeson and Obel L. McAlister, both of Fort Worth, for appellees.

SPEER, Justice.

This is an appeal from the County Court at Law No. One of Tarrant County. As we view the record, the issues to be determined by us are found mainly in the pleadings of the parties. The admissibility of certain testimony will also be discussed, but this is only incidental to what we shall say in regard to the pleadings.

Plaintiffs, Mrs. Sadie Taliaferro, joined pro forma by her husband, V. D. Taliaferro, and General Exchange Insurance Corporation, sued Thomas C. Rhodes for damages, in the sum of $426.38, the amount to be apportioned, $195 to Mrs. Taliaferro, and $231.38 to General Exchange Insurance Corporation, hereinafter called Corporation.

The petition bases plaintiffs' right of recovery upon allegations that Mrs. Taliaferro, on the occasion, parked her automobile on the parking lot of the defendant, for a valuable consideration paid by her, while she attended a moving picture show; alleging an implied promise on the part of defendant to preserve and keep her car during said period of time and to return it upon her demand. That defendant, acting through his agents, placed the automobile immediately adjacent to a public street, leaving the ignition key in the car and that while thus parked it was stolen; that the several acts of defendant constituted negligence and were the proximate causes of the theft being committed. Further allegations were made that plaintiff corporation had previously issued to Mrs. Taliaferro a policy of insurance against theft of her car; that while the car was in the hands of the thief it was wrecked and badly damaged. After recovery of the automobile, the Corporation had it repaired to the satisfaction of Mrs. Taliaferro, at an expense of $231.38, and returned it to her, and took from her a written assignment of an interest in her claim against the defendant, to the extent of the value of repairs so made. There are allegations that Mrs. Taliaferro sustained an additional loss for the use of the automobile during the time it was detained from her, in the sum of $195. These plaintiffs instituted the suit for the recovery of the two items as damages, to be awarded to them in the respective amounts.

Defendant filed a general demurrer and general denial, and later filed a general demurrer and many special exceptions, the latter going to designated paragraphs of plaintiffs' petition; in the view we take of this appeal, we think it unnecessary to take notice here of the special exceptions, but will later mention some of them to aid in a subsequent trial. Several special defenses were plead, which likewise become unimportant on this appeal.

All demurrers and special exceptions were overruled by the court, and the case was tried to a jury on special issues. The verdict was favorable to the plaintiffs, and judgment was rendered in favor of Mrs. Taliaferro for $75, and in favor of the Corporation for $231.38. Motion for new trial being overruled, appeal was perfected by the defendant to this court.

Assignments of error are presented, challenging the action of the trial court in overruling, (1) defendant's plea in abatement; (2) his general demurrer; and (3) to the introduction in evidence of certain statements made by an attendant on the parking lot of defendant. Several assignments of error are presented, but because we must sustain the one complaining of the overruling of the general demurrer, others become unimportant.

What the defendant (appellant here) terms a plea in abatement was filed a month and two days after he had answered to the merits of the case, without having withdrawn by permission of the court, his original answer, and was not in due order of pleading. However, we attach no material significance to this, for the reason the plea was no more than a special exception going to the sufficiency of the petition, because it did not allege any facts showing Mrs. Sadie Taliaferro, a married woman, was entitled to institute and prosecute the suit in her own name.

The petition upon which both plaintiffs relied disclosed that Mrs. Taliaferro was a married woman. Her husband was joined "pro forma"; this means that he was named simply as a matter of form, and did not thus become a party to the suit. Houston Gas & Fuel Co. v. Spradlin, Tex.Civ.App., 55 S.W.2d 1086; Hill v Kelsey, Tex.Civ.App., 89 S.W.2d 1017, writ dismissed; Yellow Cab & Baggage Co. v. Smith, Tex.Civ.App., 30 S.W.2d 697, writ dismissed.

There were no allegations in the petition that the automobile was the separate property of Mrs. Taliaferro, nor did it appear the husband had refused or neglected to institute and prosecute the suit, nor that he had refused to join her in the action; nothing appears in the petition which would authorize her to maintain such a suit. Taking the petition on its face, it would appear that plaintiffs ignored the husband's possible community interest in the cause of action. No doubt allegations could have been made, which, if proven, would have entitled Mrs. Taliaferro to recover the damages sought in her own name, but this was not done. Moreover, to concede that the automobile was Mrs. Taliaferro's separate property, and that damages arising under the facts plead were hers, yet, absent allegations of derelictions on the part of the husband, she could not maintain a suit for their recovery.

Rev.Civ.St. Art....