Taylor v. Catalon

• Decision Date: 11 November 1942
• Docket Number: No. 7941.,7941.
• Citation: 166 S.W.2d 102
• Parties: TAYLOR v. CATALON.
• Court: Texas Supreme Court

166 S.W.2d 102

TAYLOR v. CATALON.

No. 7941.

Supreme Court of Texas

November 11, 1942.

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

Action by Gertrude Catalon against H. T. Taylor and another for injuries sustained in a collision between a taxicab and a bus. A judgment for plaintiff for $1,500 was affirmed by the Court of Civil Appeals, 155 S.W.2d 965, and named defendant brings error.

Reversed and judgment rendered for plaintiff for $750.

Alpha & Brunson, of Houston, for appellant.

Irving G. Mulitz, A. L. Vetrano, and E. B. Colgin, all of Houston, for appellee.

CRITZ, Justice.

This suit was tried in the District Court of Harris County, with Mrs. Gertrude Catalon as plaintiff and H. T. Taylor and Houston Electric Company as defendants. Trial was had before a jury, but at the close of the evidence the court withdrew the case as against Houston Electric Company from the jury, and entered judgment for such Company. That judgment has become final, and we are not concerned with it here. As against Taylor, the case was submitted to the jury on special issues. The jury answered such issues in favor of Mrs. Catalon, and, based on such verdict, the district court entered judgment for her and against Taylor in the sum of $1,500. On appeal by Taylor, this judgment was affirmed by the Court of Civil Appeals for the First District. 155 S.W.2d 965. Taylor brings error.

Trial in the district court was begun on Mrs. Catalon's first amended original petition. In such petition she sued Taylor for damages for personal injuries, alleged to have resulted to her on account of a collision; which collision is alleged to have resulted from the negligence of Taylor's servant, agent and employee. In this petition Mrs. Catalon alleged that she was a feme sole. She said nothing about her marriage status, past or present. At some time during this trial, Mrs. Catalon filed a further pleading, in the nature of a trial amendment, and so denominated. In this trail amendment Mrs. Catalon alleged, in substance, that she was then divorced from her husband Eddie Catalon, but that she was married to him at the time the injuries made the basis of this suit were received. Eddie Catalon did not join in this suit as a plaintiff, and he was not otherwise made a party. Taylor's answer to Mrs. Catalon's petition consisted of a general demurrer and a general denial. The case was tried and appealed before the present Texas Rules of Civil Procedure became effective. The record does not show that the general demurrer was ever presented to or ruled on by the trial court.

In response to pertinent issues, duly submitted, the jury found several acts of negligence on the part of Taylor's servant, and that each of said acts was a proximate cause of Mrs. Catalon's injuries. Also, the jury found the collision which resulted in Mrs. Catalon's injuries was not the result of an unavoidable accident.

We here quote Special Issue No. 10:

"What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence will fairly and reasonably compensate the plaintiff for the injuries, if any suffered by her as a direct and proximate result of the collision in question, taking into consideration the following elements of damage and none other:

"1. Physical pain and suffering, if any, sustained by the plaintiff from the date of the accident to the date of this trial.

"2. Loss of earnings, if any, sustained by the plaintiff from the date of the injury to the date of this trial.

"3. Reasonable and necessary doctors' bills, if any, for treatment growing out of the injuries, if any, sustained in the collision, down to the date of this trial."

The jury answered the above quoted special issue: "$1500.00."

Based on the above verdict, the district court rendered judgment for Mrs. Catalon, and against Taylor, for $1,500.

From the record we have stated it is evident that the trial court entered judgment for Mrs. Catalon for the whole amount of the damages which resulted from her injuries. It would constitute a very highly technical ruling to say that this is not true. In fact, counsel for Mrs. Catalon do not contend that she has not recovered the whole amount of damages as above indicated.

Damages for personal injuries, sustained by the wife during marriage, are the community property of the wife and husband. Ezell v. Dodson, 60 Tex. 331; Texas Cent. Ry. Co. v. Burnett, 61 Tex. 638; San Antonio St. R. Co. v. Helm, 64 Tex. 147; Gallagher v. Bowie, 66 Tex. 265, 17 S.W. 407; Jordan v. Moore, 65 Tex. 363; Dixie Motor Coach Corp. v. Watson, Tex.Civ. App., 138 S.W.2d 314; Roberts v. Magnolia Petroleum Co., Tex.Civ.App. 142 S.W. 2d 315; Id., 135 Tex. 289, 143 S.W.2d 79.

Where a husband and a wife, owning community property, are divorced without the court in its decree having made any division of such property in the divorce decree, they become tenants in common in the property or joint owners thereof, just as if they had never been married. Kirkwood v. Domnan, 80 Tex. 645, 16 S.W. 428, 26 Am.St.Rep. 770.

In the absence of an assignment of error, the only objections that can be considered on appeal are those which are classed as fundamental. In this connection, it is also the law that if there be error on the face of the record, the court can correct it, though not pointed out by an assignment of error. Earle v. Thomas, 14 Tex. 583; Kilgore v. Jordan, 17 Tex. 341; Walker Moore Co. v. Wegley, Tex.Civ. App., 287 S.W. 298; Connor v. City of Paris, 87 Tex. 32, 27 S.W. 88; Taylor v. Callaway, 7 Tex.Civ.App. 461, 27 S.W. 934; Houston, E. & W. T. Ry. Co. v. Skeeter Bros., 44 Tex.Civ.App. 105, 98 S.W. 1064; Hamilton v. Kegley, 57 Tex.Civ.App. 159, 122 S.W. 304; Burkett v. Wright, Tex.Civ. App., 293 S.W. 315.

Where on appeal there is no statement of facts, the court will consider such assignments of error as relate to the sufficiency of the petition to warrant the judgment; and a judgment not authorized by the petition, but in contradiction thereof, is fundamentally erroneous. Roundtree v. City of Galveston, 42 Tex. 612; Frost v. Frost, 45 Tex. 324; Devore v. Crowder, 66 Tex. 204, 18 S.W. 501; Crawford v. McGinty, Tex.Sup., 11 S.W. 1066; Stone v. McClellan & Prince, 36 Tex.Civ.App. 354, 81 S.W. 751; Petty v. Morgan, Tex. Civ.App., 116 S.W. 141; Buster v. Woody, Tex.Civ.App., 146 S.W. 689; Matthies v. Rannals, Tex.Civ.App., 91 S.W.2d 380; Womack v. First National Bank, Tex.Civ. App., 81 S.W.2d 99.

In Matthies v. Rannals, supra, the plaintiff sued a married woman on a note, and the petition disclosed upon its face that there was no personal liability. A personal judgment was rendered against the married woman. She appealed without bringing up a statement of facts. It was held that the petition would not support the judgment, and that the matter presented fundamental error. The holding was undoubtedly based on the rule of law that a judgment not authorized by the petition is fundamentally erroneous.

When we come to examine Mrs. Catalon's pleadings in this cause, we find that in her first amended original petition she said nothing about her marital status, past or present; she simply alleged that she was a feme sole. In her trial amendment, which must be considered as a part of her pleadings, she, in effect, alleged that at the time she was injured she was married to Eddie Catalon, but had since been divorced from him. Her pleadings, taken as a whole, therefore affirmatively alleged that she was attempting to prosecute a cause of action for trespass or tort which, in part, one-half, she did not own. Stated in another way, Mrs. Catalon affirmatively pleaded a cause of action grounded in tort, owned one-half by herself and one-half by her former husband. The trial court awarded her judgment not only for the one-half of the cause of action which she pleaded she owned, but for the one-half which she pleaded was owned by her former husband as well. Such a judgment not only did not conform to the pleadings, but was directly and absolutely contrary thereto. It awarded Mrs. Catalon a judgment for a thing she directly and affirmatively pleaded that she was not entitled to. Such a judgment was, and is, fundamentally erroneous, and cannot stand.

The opinion of the Court of Civil Appeals holds that, because there is no statement of facts in this record, it can be presumed that the former husband assigned his interest in this cause of action to the plaintiff. No such assignment was pleaded. We can not sustain this holding. It is true that it is the general rule that in the absence of a statement of facts it will be presumed that the evidence supports the judgment; but such general rule is not applicable where the judgment for the plaintiff shows upon its face that it is not authorized by the petition, but is directly contradictory thereof.

One tenant in common or joint owner may maintain an action of trespass, to try title, without joining the other cotenants. This is because the cotenants, as regards title, are separately seized, and there is no privity of estate between them. May v. Slade, 24 Tex. 205; Watrous' Heirs v. McGrew, 16 Tex. 506; Croft v. Raines, 10 Tex. 520. This rule, however, does not obtain in actions of trespass to recover damages arising from a trespass or tort. In such a case all the joint owners or tenants in common should be made parties to the suit. This rule is grounded on the fact that the law abhors a multiplicity of suits, and the further fact that, though the estates of the cotenants or joint owners are several, yet the damages survive to all; and it would be unreasonable to allow several actions for damages for one single trespass. May v. Slade, supra; Houston & Texas Central R. Co. v. Knapp, 51 Tex. 592; Cummings & Co. v. Masterson, 42 Tex.Civ.App. 549, 93 S.W. 500.

It is held that the failure to make all the cotenants or joint owners of a cause of action for damages parties to the suit can only be taken advantage...