Robinson v. Watkins

• Decision Date: 07 February 1925
• Docket Number: (No. 9310.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 271 S.W. 288
• Parties: ROBINSON v. WATKINS et al.
• Court: Texas Court of Appeals

Page 288

271 S.W. 288

ROBINSON v. WATKINS et al.

(No. 9310.)^*

Court of Civil Appeals of Texas. Dallas.

February 7, 1925.

Rehearing Denied April 4, 1925.

Appeal from District Court, Dallas County; Louis Wilson, Judge.

Action by S. D. Watkins and another against J. D. Robinson, as receiver. Judgment for plaintiffs, and defendant appeals. Affirmed.

Davis, Johnson & Handley, of Dallas, for appellant.

John White and W. A. Hudson, both of Dallas, for appellees.

VAUGHAN, J.

Appellees, as plaintiffs, filed their suit in the court below against J. D. Robinson, "receiver of the Campbell House, a private corporation," as defendant, to recover damages on account of personal injuries sustained by S. D. Watkins on the 28th day of June, 1923, one of the appellees, minor son of appellee Mrs. Lula Watkins, while in the service of said receiver working at a hotel at the corner of Elm and Harwood streets. Dallas, Texas, known as the "Campbell House" and operated by said J. D. Robinson as the duly appointed, qualified, and acting receiver.

It is further alleged that by reason of the injuries received by said S. D. Watkins, he sustained damages in the sum of $10,000 and that by reason of appellee Lula Watkins being denied the contributions that would have been made by said S. D. Watkins during his minority to her support and maintenance, and contributions for that purpose that he would have made after he had reached the age of 21 years, appellee Lula Watkins had sustained damages in the sum of $5,000.

J. D. Robinson, receiver of the Campbell House, operated by P. S. Campbell and R. C. Campbell, a partnership, filed an answer denying liability. A trial before a jury resulted in verdict and judgment in favor of appellees for $5,500, being apportioned as follows: $5,000 to appellee S. D. Watkins, and $500 to appellee Lula Watkins, from which judgment an appeal was duly prosecuted and is now before us on the following proposition: "A material variance as to party defendant between the allegations in the pleadings and the proof submitted by the parties to the suit will not support a judgment at variance with both the pleadings and the proof" — based on the following assignment of error:

"The trial court erred in entering the judgment sought by the plaintiff herein, and in granting the motion of the plaintiff for judgment as presented by the plaintiff, in this: In the pleadings on which the plaintiff went to trial the receiver, J. D. Robinson, is sued as `J. D. Robinson, receiver of the Campbell House, a private corporation'; the record testimony in this case shows that J. D. Robinson was appointed receiver to take charge of the business and affairs of the partnership existing between Percy S. Campbell and Roy C. Campbell; and said receiver was ordered to take charge of the business and affairs of said partnership, consisting of a hotel business operated under leased premises and property at corner of Harwood and Elm streets, Dallas, Tex.; and the judgment entered in this case is against J. D. Robinson, receiver of the Campbell House Hotel; that the pleadings and proof do not correspond as to who is the defendant; the judgment as entered is against a party different to the party sued and different to the party shown by the proof to be the defendant; and the pleadings and proof do not support the judgment as entered."

The suit was filed against J. D. Robinson, receiver of the Campbell House, a private corporation, as defendant. The material allegations of the petition in this respect being as follows:

"Now comes S. D. Watkins, a minor, by and through next friend, Lula Watkins, and Lula Watkins, a feme sole, individually, plaintiffs, complaining of the Campbell House, a private corporation, hereinafter styled defendant, * * * that the defendant J. D. Robinson was the duly appointed, qualified, and acting receiver of the Campbell House hotel, all the property and franchise of the said Campbell House hotel, and he is still said receiver of said Campbell House, and the said Campbell House, being a hotel then and now operated in the city of Dallas, Dallas county, Tex., and the defendant then and now being engaged in the business of operating and controlling said Campbell House hotel for the general public for pecuniary profit through a duly pending receivership. * * *"

Appellant, as the receiver sued, appeared, and answered in his name and proper capacity, to wit, receiver of the Campbell House operated by P. S. and R. C. Campbell, a partnership, without objecting to the misnomer, being content to answer thereto as the proper party sued.

J. D. Robinson, the party sued as receiver, appeared in the court below for trial as receiver of the Campbell House operated by P. S. and R. C. Campbell, a partnership, and, as such defendant, contested with appellees their right to recover on the merits of the case presented by them. Judgment was rendered in favor of appellees against J. D. Robinson, receiver of the Campbell House hotel.

That the suit as brought against J....