Vick v. Merchants' Fast Motor Lines

• Decision Date: 02 May 1941
• Docket Number: No. 2137.,2137.
• Citation: 151 S.W.2d 293
• Parties: VICK et al. v. MERCHANTS' FAST MOTOR LINES, Inc., et al.
• Court: Texas Court of Appeals

151 S.W.2d 293

VICK et al. v. MERCHANTS' FAST MOTOR LINES, Inc., et al.

No. 2137.

Court of Civil Appeals of Texas. Eastland.

May 2, 1941.

Rehearing Denied May 16, 1941.

Appeal from District Court, Stephens County; B. H. Atchison, Judge.

Garnishment suit by Mrs. W. F. Vick and another against the Merchants' Fast Motor Lines, Inc., for the amount of plaintiffs' judgment against John R. Thomas on a note, in which the judgment debtor intervened. From a judgment for intervener and garnishee, plaintiffs appeal.

Affirmed in part, and in part reversed and rendered.

Herbert L. Tuchin and Lyndsay D. Hawkins, both of Breckenridge, for appellants.

Todd, Crowley & Thompson, of Fort Worth, and L. H. Welch, of Breckenridge, for appellees.

GRISSOM, Justice.

March 25, 1919, John R. Thomas executed a promissory note for $600 payable to the order of W. F. Vick. In 1931 Thomas executed a renewal note. In 1936 Thomas executed his promissory note for $968.89, payable to the order of W. F. Vick. This note was for the unpaid balance of principal and interest then due on said second note. On April 6, 1940, Mrs. W. F. Vick, the widow of W. F. Vick, deceased, and Era Smith and her husband, C. B. Smith, as plaintiffs, filed suit on said third note against John R. Thomas. (Mrs. Vick and Era Smith are the heirs of W. F. Vick, deceased.) On May 8, 1940, plaintiffs in said suit obtained a judgment against John R. Thomas on said third note for the sum of $1,422.75.

On June 22, 1940, the automobile in which John R. Thomas and his wife, Lucille, and his daughter, Hermoine, were riding, collided with a truck owned by Merchants' Fast Motor Lines, a corporation. The accident resulted in the immediate death of Mrs. Thomas, injuries to John R. Thomas and said daughter, and damage of the Thomas automobile.

On July 9, 1940, John R. Thomas and the children of John R. Thomas and his deceased wife, instituted a suit against the Merchants' Fast Motor Lines to recover damages resulting from said collision, and, in particular, to recover damages arising from the death of Mrs. Thomas. On July 9, 1940, the parties to said suit agreed upon a judgment, which was rendered on that day. The judgment awarded to John R. Thomas "for his personal injuries and property damage" $1,250; to Hermoine for personal injuries and property damage $1,500; to all plaintiffs on account of the cause of action arising by reason of the death of Mrs. Thomas "to be apportioned as the court may deem just" $6,000. The court then proceeded to hear evidence and approved the settlement and apportioned the recovery for the death of Mrs. Thomas among the plaintiffs, and awarded to John R. Thomas $1,200 as the amount to which he was entitled by reason of the death of Mrs. Thomas. A part of the recovery of each plaintiff was awarded to their counsel. The judgment recited that the court, after hearing evidence on the pleas of intervention, found that, on June 27, 1940, valid assignments of John R. Thomas's cause of action in said suit were executed to Dr. Kessler for $300; to West Side Hospital, $363.50; to Thompson-Kiker Funeral Home, $240; to Mrs. McKinley, $65; to McDowell Chevrolet Company, $355.75, and to his counsel $453.25. It was ordered that the defendant pay such amounts directly to said interveners "to be deducted from the recovery in favor of John R. Thomas". The judgment further recited this judgment is "being paid by the defendant at the time of the entry hereof, and in accordance with the provisions hereof, except that portion of the judgment represented by the net balance in favor of the plaintiff, J. R. Thomas, in the sum of $672.47 * * *."

The plaintiffs in the cause of Mrs. W. F. Vick et al. vs. John R. Thomas, on July 1, procured the issuance and service of a writ of garnishment (based on their judgment of May 8, 1940) against Merchants' Fast Motor Lines. On July 13, the garnishee filed its answer under oath in which it stated: (1) "Except as hereafter shown in paragraph 7 of this answer, garnishee is not now indebted to John R. Thomas and was not indebted to him when the writ of garnishment was served upon it." (2) That garnishee has not and did not have when the writ was served any effects belonging to Thomas. (3) That garnishee knew of no persons indebted to Thomas. (4) That it knew of no person who had effects belonging to Thomas. (5) That Thomas owned no shares of stock in the garnishee corporation and did not own any when the writ was served, and (6) that Thomas had no interest in the garnishee corporation. In paragraph 7, the garnishee's answer alleged the facts of the automobile collision; that Thomas claimed liability of the garnishee for damages resulting from injuries, and property damage, and that Mrs. Thomas was killed as a result of the collision; that the Thomas children made claims for damages; that on July 9, 1940, a suit was filed by Thomas and his children against the garnishee. That on July 9, 1940, the parties to that suit settled and compromised all claims arising out of said collision, pursuant to which a judgment was entered by the terms of which "a net balance of $672.47 was adjudicated to John R. Thomas; that after the entry of said judgment, the same was paid off in full as to all plaintiffs and interveners, except said net balance adjudicated to John R. Thomas, that said judgment in favor of John R. Thomas is unpaid and is a valid and subsisting judgment against garnishee."

On July 15, John R. Thomas intervened in said garnishment suit, alleging the facts relative to the automobile collision, the resulting injuries, and the death of Mrs. Thomas, the settlement agreement and judgment; that judgment was rendered against garnishee in favor of John R. Thomas "for the sum of $672.47, and as shown by the judgment therein entered July 9, 1940, and now on file among the papers in said cause * * *." Thomas alleged that said judgment in his favor for $672.47 was recovered by virtue of the provisions of Art. 4675, Vernon's Ann. Civ.St., as damages resulting from the death of his wife, and was, therefore, exempt from garnishment; that the debt which the plaintiffs, Mrs. Vick, et al., reduced to judgment against him "was the community debt of intervener and his deceased wife * * * and was and is under the provisions of statute the debt of the deceased, Lucille E. Thomas, and under provisions of Art. 4675 * * * expressly exempt from the writ of garnishment * * * and from all debts of the deceased Lucille E. Thomas." Intervener Thomas prayed for judgment against Mrs. Vick, et al "that said sum of $672.47 be and the same is by provision of statute exempt to this intervener * * *."

The plaintiffs in garnishment (Mrs. Vick et al) filed their answer to the plea of intervention of Thomas, which consisted of a general demurrer and a special exception to the effect that the plea of intervention was insufficient to authorize a judgment holding that the $672.47 was exempt from garnishment "because it appears conclusively from the record herein that this garnishment proceeding is based upon a judgment against defendant John R. Thomas alone, and so is not an attempt to subject the fund impounded by the writ of garnishment to a debt of his deceased wife, as contemplated by R.S. Art. 4675 * * *." Plaintiffs further denied all the allegations in Thomas's plea in intervention.

Intervener Thomas filed a supplemental petition, alleging that on May 8, 1940, and long prior thereto, intervener and Lucille Thomas, deceased, were husband and wife; that the note sued upon by Mrs. Vick et al, and upon which judgment was entered May 8, 1940, was a note executed "by intervener for an obligation incurred by his wife * * * for medical treatment and other expenses, and was a community debt of this intervener and his deceased wife * * *." He further alleged that at the time the expenses were incurred for which said note was given that intervener and his deceased wife were living together as husband and wife and "the obligation therein was the community obligation or debt of this intervener and his wife * * *." That the judgment obtained by Mrs. Vick et al against him on May 8, 1940 and out of which grew the writ of garnishment "was a community...