Southern Pac. Co. v. Ulmer

• Decision Date: 23 June 1926
• Docket Number: (No. 692-4607.)
• Citation: 286 S.W. 193
• Parties: SOUTHERN PAC. CO. v. ULMER et ux.
• Court: Texas Supreme Court

Page 193

286 S.W. 193

SOUTHERN PAC. CO. v. ULMER et ux.

(No. 692-4607.)

Commission of Appeals of Texas, Section B.

June 23, 1926.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by N. A. Ulmer and wife against the Southern Pacific Company. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (282 S. W. 305), and defendant brings error. Judgments affirmed.

H. H. McElroy and Del W. Harrington, both of El Paso, for plaintiff in error.

Jones, Hardie & Grambling, of El Paso, for defendants in error.

POWELL, P. J.

This is a personal injury case filed against plaintiff in error by N. A. Ulmer and his wife, Patsy, for damages alleged to have been sustained by the latter while a passenger. Judgment for $15,000 was rendered by the trial court, and that judgment was affirmed by the Court of Civil Appeals. The opinion of the latter court is very full. See 282 S. W. 305.

We do not think it necessary to restate the case here at any length. The husband and wife joined in the suit. The prayer was for such relief as they might be entitled to. The jury found the total damages to be $15,000. The entire amount so found was awarded to the wife by the court. It is insisted by the railway company that, since the judgment did not mention the husband, it did not dispose of him, and was not a final judgment. With this view we cannot agree

It is true that in 1915 the Legislature passed an act (article 4615 of the Revised Civil Statutes of 1925) reading 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. Acts 1915, p. 103."

Prior to the passage of that act, compensation for personal injuries to the wife was part of the community estate. Now all of such recovery is the separate property of the wife, except that the husband may be reimbursed for expenses he incurred incident to her injuries and the collection of the compensation. In other words, the net recovery arising out of the accident and injury now belongs to the wife as her separate estate. While the statute is silent as to these expenses, it would seem that they would constitute a part of the community estate.

The relevant portion of the judgment of the trial court reads as follows:

"It is therefore ordered, adjudged, and decreed that plaintiff's suit as against the El Paso Union Passenger Depot Company be, and the same is hereby, dismissed, and that plaintiff's suit as against the Galveston, Harrisburg & San Antonio Railroad Company be, and the same is hereby, dismissed, and that the costs incurred by said parties be taxed against the plaintiff Patsy Ulmer and N. A. Ulmer.

"It is further ordered, adjudged, and decreed by the court that said Patsy Ulmer do have and recover of and from the defendant, Southern Pacific Company, a corporation, the sum of $15,000, together with interest from this date at the rate of 6 per cent. per annum, together with all costs of suit, except those adjudged against plaintiffs, and the clerk of this court is directed to issue all writs of execution necessary for the collection of costs in this cause, and that said clerk issue a writ of execution directed to the sheriff of El Paso county, Tex., to collect the judgment in favor of said Patsy Ulmer and against the Southern Pacific Company, and that the clerk issue all other and further writs as may be required for the enforcement of this judgment."

It is elementary, of course, that a judgment must dispose of all the parties and issues. And conflicts have arisen among the Courts of Civil Appeals as to whether or not the parties and issues may be disposed of by "necessary implication." But, our Supreme Court and Commissions of Appeals have uniformly adopted a liberal rule, and have held that a final judgment which, either expressly or by necessary implication, disposes of all the parties and issues is final. We think this judgment meets the test. The total recovery allowed by the jury was $15,000. When the court awarded all of such recovery to the wife, it necessarily meant that nothing was thought to be due the husband by the court. After giving it all to the wife, there was no necessity to say that nothing was awarded the husband. There was nothing left for him to recover. For that reason, we think this judgment as effectively disposed of the husband as if it had gone on and provided that the husband take nothing by reason of his joinder in the suit. For cases illustrating judgments held final by necessary implication, we refer to Whitmire v. Powell, 103 Tex. 232, 125 S. W. 889; Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161; Tennison v. Donigan (Tex. Com. App.) 237 S. W. 229; Lindsey v. Hart (Tex. Com. App.) 276 S. W. 199.

In the first case cited, the subject-matter was the title to a tract of land. In disposing of the question of the finality of the judgment in that case, Chief Justice Gaines said:

"It is assigned as error that the Court of Civil Appeals erred in holding that there was a final judgment in the case. The judgment did not mention Mrs. Whitmire, and is not a...