Schwing v. Bluebonnet Exp., Inc.

• Decision Date: 10 January 1973
• Docket Number: No. B--2974,B--2974
• Citation: 489 S.W.2d 279
• Parties: John H. SCHWING et al., Petitioners, v. BLUEBONNET EXPRESS, INC., et al., Respondents.
• Court: Texas Supreme Court

Page 279

489 S.W.2d 279

John H. SCHWING et al., Petitioners, v. BLUEBONNET EXPRESS, INC., et al., Respondents.

No. B--2974.

Supreme Court of Texas.

Jan. 10, 1973.

Rehearing Denied Feb. 7, 1973.

Cauley & Kreshner, R. Douglass Cauley, Houston, Dunnam, Dunnam & Dunnam, W. V. Dunnam, Jr., Waco, for petitioners.

Clawson & Jennings, Paul C. Murphy, III, Max H. Jennings and Karl A. Maley, Houston, for respondents.

WALKER, Justice.

In Graham v. Franco, Tex.Sup., 488 S.W.2d 390, it was held that the cause of action and recovery for personal injuries to the body of a married woman, including disfigurement and physical pain and suffering, are her separate property. Our purpose here is to reexamine, in the light of that holding, the Texas rule that the contributory negligence of the husband precludes a recovery by the other statutory beneficiaries against a third party tortfeasor for the wrongful death of the wife.

Mrs. Margaret Jo Schwing lost her life on October 25, 1964, when the automobile driven by her husband and in which she was riding as a passenger struck the rear of a parked truck on the Southwest Freeway in Houston. The truck, which was owned by Wood Bros. Transfer, Inc., was under lease to Bluebonnet Express, Inc. Its operator was Johnnie Carlton Belin, who was an employee of Bluebonnet and acting in the course of his employment at the time. Mrs. Schwing was survived by her husband, John H. Schwing, and by two minor daughters, Anita Maureen Schwing and Kathy Eileen Schwing.

Suit was instituted by John H. Schwing, individually and as next friend for his two daughters, against Bluebonnet, Wood and Belin to recover damages under the Texas wrongful death statutes, Art. 4671 et seq. ¹ Anita Maureen Schwing reached her majority and married prior to the trial, and her husband was joined as a plaintiff. Johnnie Carlton Belin died prior to the trial, and the administrator of his estate was substituted as a defendant.

In response to the special issues submitted, the jury found that the accident was proximately caused by the negligence of Belin in stopping the truck partially on a traffic lane of the freeway and the negligence of Schwing in failing to keep a proper lookout. Damages were assessed by the jury as follows: (1) to Kathy Eileen Schwing $27,500.00; (2) to Anita Maureen Clark $17,500.00; and (3) to John H. Schwing $15,000.00. The trial court rendered judgment on the verdict that plaintiffs take nothing, and the Court of Civil Appeals affirmed. 470 S.W.2d 133.

Although plaintiffs argue to the contrary, we agree with the Court of Civil Appeals that there is some evidence to support the jury's findings that the accident was proximately caused by the negligence of John H. Schwing in failing to keep a proper lookout. The question to be decided is the effect of these findings on the rights of the several plaintiffs. Art. 4672 provides as follows:

The wrongful act, negligence, carelessness, unskillfulness or default mentioned in the preceding article must be of such character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury.

Under this article the statutory beneficiaries may not successfully maintain an action for wrongful death where the decedent could not have recovered if he had survived the injuries. Sullivan-Sanford Lumber Co. v. Watson, 106 Tex. 4, 155 S.W. 179. For many years the recovery for personal injuries suffered by a married woman has been regarded by our courts as community property. Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102; Ezell v. Dodson, 60 Tex. 331; Northern Texas Traction Co. v. Hill, Tex.Civ.App., 297 S.W. 778 (wr. ref.). This led to the holding that the husband's contributory negligence barred a recovery against a third party for the wife's personal injuries. There are statements in some opinions suggesting that the negligence of the husband was imputed to the wife, but the rule that his contributory negligence precluded a recovery for her injuries was based on public policy and the principle that the husband should not be permitted to profit from his own wrong. It has been referred to as the community property defense. See Missouri Pac. Ry. Co. v. White, 80 Tex. 202, 15 S.W. 808; G.C. & S.F. Ry. Co. v. Greenlee, 62 Tex. 344; Northern Texas Traction Co. v. Hill, Tex.Civ.App., 297 S.W. 778 (wr. ref.); Bell v. Phillips Pet. Co., Tex.Civ.App., 278 S.W.2d 407 (wr. ref. n.r.e.); 13 S.W.L.J. 295.

Since the husband's contributory negligence would have prevented a recovery by the wife against a negligent third party if she had survived, it also barred a recovery by the statutory beneficiaries against a third party tortfeasor for the wrongful death of the wife. Dallas Ry. & Terminal Co. v. High, 129 Tex. 219, 103 S.W.2d 735. The Court of Civil Appeals properly relied on this rule in affirming the judgment of the trial court that plaintiffs take nothing in the present case. After the case was decided by the Court of Civil Appeals, however, we handed down our decision in Franco. It was there held: (1) that the cause of action and recovery for personal injuries to the body of a married woman are her separate property; and (2) that the contributory negligence of the husband does not bar a recovery by the wife for such injuries. The cases holding to the contrary were overruled.

In view of our holdings in Franco, the fact that the negligence of a husband or wife proximately caused the death of the other spouse is no longer a relevant consideration in determining whether some act or omission of a third party satisfies the requirements of Art. 4672. The contributory negligence of the surviving spouse would not, if the decedent had survived, prevent the latter from maintaining an action to recover for disfigurement or physical pain and suffering. In the ordinary case, therefore, it will not immunize a negligent third party from liability to the other statutory beneficiaries for the death of the deceased spouse. The case of Dallas Ry. & Terminal Co. v. High, 129 Tex. 219, 103...