author: DUNKLIN, J.

text:
    FORT WORTH & DENVER CITY RY. CO. v. GREATHOUSE et al.

    No. 12443.
    Court of Civil Appeals of Texas. Fort Worth.
    March 28, 1931.
    Rehearing Denied May 2, 1931.
    Thompson & Barwise, of Port Worth, and Carrigan, King & Surles, of Longview, for appellant.

      E. W. Napier, of WicMta Falls, for ap-pellees.

      Writ of error granted.

   DUNKLIN, J.

There was a collision between a truck and a passenger train operated by the Fort Worth & Denver City Railway Company at a public street crossing in the town of Iowa Park. At the time of the collision, Joe Bailey Dean was driving the truck, in which was loaded some household furniture belonging to Mrs. L. V. Thomas, and riding therein with him were Mrs. L. V. Thomas and her minor child, J. D. Greathouse, and her mothér, Mrs. Lizzie Greathouse. As a result of the collision, Mrs. Thomas was killed, and her mother, Mrs. Lizzie Greathouse, sustained some personal injuries, but J. D. Greathouse, the minor son of the deceased, six years old, sustained no injuries.

The accident occurred on November 3,1928, and on November 27, 1928, a suit was instituted by Mrs. Lizzie Greathouse, as next friend for and in behalf of the minor, J. D. Greathouse, against the railway company for damages resulting to him from the death of his mother, which it was alleged was proximately caused by the negligence of the operatives of the passenger train in the following particulars: (1) That the crossing at which the accident occurred was one of the busiest streets in the city, notwithstanding which the train approached the same at a rapid and-dangerous rate of speed; (2) that no locomotive whistle or bell was sounded; (3) the failure to maintain an automatic signal at. the crossing to give warning of the approach of trains.

Damages were claimed for the minor for the loss of his support, education, care, training, and nurture which it is alleged he would have received but for the death of his mother. There was a further claim of $250, the value of some household furniture that was destroyed as a result of the collision, and which was being transported in the truck at the time, and which the minor inherited from his mother as her sole heir.

That suit was filed by W. J. Townsend, J. A. Lantz, and E. A. Martin, attorneys for plaintiff in the case. An answer was filed to that suit by the defendant, consisting óf a general demurrer, general denial, and a special plea that the collision resulted solely from the negligence of the driver of the truck in failing to keep a proper lookout for approaching cars and failing to listen for such approach; and that Mrs. L. V. Thomas, the mother of the boy, was likewise guilty of contributory negligence in failing to exercise any care for her own safety and welfare. That answer was filed on December 28, 1928, and on the same date a judgment was rendered against the defendant in favor of Mrs. Lizzie Greathouse, for the use and benefit of the minor plaintiff, J. D. Greathouse, for the sum of $1,500, of which amount $600 was allowed the attorneys representing the plaintiff for their legal services. The judgment recites that it was rendered by virtue of an agreement by all the parties, with this further recital: “And the court having duly considered said agreement and having heard the evidence thereon, here and now finds that the same is in all respects reasonable and fair and supported by the evidence, and said agreed judgment is in all things affirmed and approved by the court.”

The employment of the attorneys for plaintiff in that suit was evidenced by a written agreement dated November 26, 1928, and was executed by Mrs. Lizzie Greathouse for herself and as next friend to the minor, J. D. Greathouse, and by its terms it was provided that the attorneys, W. J. Townsend, J. A. Lantz, and E. A. Martin should prosecute to settlement, by suit or compromise, the claims of both Mrs. Greathouse and of the minor for damages growing out of the collision.

On January 3, 1929, the amount of $900, so recovered and set apart for the benefit of the minor, was deposited in the registry of the court with the clerk thereof, to be kept as a trust fund in accordance with the direction of the court, as required by the terms of the judgment rendered.

On December 31, 1928, which was the third day after the judgment heretofore mentioned was rendered, F. G. Payne filed in the county court of Wichita county an application for appointment as guardian of the person and estate of J. D. Greathouse, the minor. In that application it was alleged that the minor was entitled to a claim for damages arising from the negligent killing of his mother, by the Fort Worth & Denver City Railway Company, which claim was of the probable value of $5,000; that the father of the boy had abandoned the child soon after his birth, and his whereabouts is now unknown; that the applicant was in no manner disqualified, and was a proper person to act as guardian of the person and estate of the minor; that the condition of the minor’s estate is such as to require the immediate appointment of a guardian. That application was duly signed by F. G. Payne at the special instance and request of E. W. Napier, a practicing attorney at the Wichita Falls bar, who then presented the same to the judge of the county court, and on December 31, 1928, which was the same day the application was filed, the judge of the county court, at a regular term, appointed F. G. Payne as temporary guardian of the estate of the minor, with the further provision requiring the issuance of service of citation on the application to the next regular term of the court. $11,000 was named as the amount of the'bond to be filed by the guardian; and on the same day, to wit, December 31, 1928, the guardian filed the bond, and also took the statutory oath, as such guardian. E. W. Napier and two others were appointed appraisers of the estate. The bond was 'signed by E. G. Payne as principal, with two sureties, one of whom was the said attorney, E. W. Napier, and the bond was approved on the same day it was filed.

On January 1, 1929, which was the next day after the appointment and qualification of Payne as temporary guardian, E. W. Napier, the attorney who had represented him in those guardianship proceedings, filed in the district court in which the minor had recovered the judgment noted above, and ih the same case, giving its style and number, the following ‘document:

“J. D, Greathouse, a minor vs. E. W. & • D. C. R. R. Co. No. 22108-0
“In the Seventy-Eighth District Court of Wichita County, Texas.
“Now come E. W. Napier, amicus curi, and suggests to the court that this cause is being prosecuted in the name of J. D. Greathouse without authority, and that the agreed judgment rendered herein is void and ought to. be set aside, and this cause dismissed fof the reason that the plaintiff J. D. Greathouse is a minor, and that Lizzie Greathouse, in whose name the suit is prosecuted, is so mentally deficient that she is incapable of understanding the nature of the suit and the rights of the said J. D. Greathouse, and is incapable of qualifying as next friend herein, and does not understand and is incapable of understanding the nature and effect of the settlement and agreed judgment attempted to be effected herein, and for the further reason that the said minor has a guardian who has been appointed by the County Judge of this County, and who has' duly qualified as such, and that this guardian, F. G. Payne, who resides in said comity, is the only person who has authority to administer the affairs of said minor. •
“That said minor has a good and meritorious cause of action against the defendant herein for the wrongful and negligent killing of his mother on or about the time alleged in the petition herein, and that the movant believes and therefore avers that in a suit before a jury a verdict could be procured and a final judgment rendered in favor of said minor in a proper suit for at least as much as Ten Thousand Dollars, and that the agreed settlement.' and judgment herein for $600,00 less forty’ per' cent attorneys fees is therefore unreasonable and unconscionable, and is the result of undue influence and overreaching practiced on said minor and said Lizzie Greathouse by the defendant and its agents, and amounts to a fraud of the rights of said minor.
■. “Wherefore, your proponent, says that the said judgment ought to be set aside and that this suit be dismissed.
“E. W. Napier, Amicus Curi.”
Prior to that time, and on November 9, 1928, the said Napier addressed this letter to the Fort Worth & Denver City Railway Company:
“E. W. Napier
“Attorney At Law
“Wichita Falls, Texas.
“November 9, 1928.
“Fort Worth & Denver City Ry. Co., Fort Worth, Texas.
“Gentlemen: I have been employed'by Mr. G. L. Parton and his wife for the purpose of instituting a suit against your company for such damages as they may be entitled to as a result of the death of their son Raymond Parton, who was killed in a crossing collision in Iowa Park on the 3rd day of November. I have also been employed by Mrs. Lizzie Greathouse for the purpose of instituting a suit for such damages as she may be entitled to by reason of her injuries suffered in said collision, and also for such damages as might have accrued to her little grandson by reason of his injuries and the death of his mother, Mrs. L. V. Thomas.
“Of course, it would be very agreéable to me to settle this matter amicably, and if you are inclined to do so,'I should appreciate an opportunity to discuss the matter with you to that end.
“In the meantime you are advised that these people have assigned to me a one-third interest in their claim and have given me the exclusive power to negotiate settlements.
“Yours very respectfully,
“EWN;ED E. W. Napier.”

On January 5, 1928, Mrs. Lizzie Great-house, acting through W. J. Townsend, J. A. Lantz, and E. A. Martin, who' were her attorneys of record in the same case, filed an answer to Napier’s motion, resisting the granting thereof, containing a general demurrer, a general denial of the allegations contained in the motion, and other special matters not necessary to be noted.

On January 5, 1929, Napier’s motion to set aside the judgment was overruled. The order overruling the same recited that the same had been duly considered.

On January 25, 1929, F. G. Payne filed with the county court his resignation as temporary guardian, with the request that he be. discharged as such. In that application it was stated that there was on deposit in the registry of the district court the sum of $900 belonging to the minor, J. D. Greathouse, and that the same constituted all of the estate belonging to the minor. On the same day the county judge entered an order discharging Payne as temporary guardian.

On May 14, 1929, H. L. Hunter filed an application for appointment as guardian of the person and estate of J. D. Greathouse, the minor, alleging in tlie application that the minor owned an estate of $000, consisting of the- deposit of that sum in the registry of the district court. That application was signed by J. A. Lantz as attorney for the applicant, and also by H. L. Hunter; Mr. Lantz being one of the attorneys who had represented the plaintiff in the original suit filed by the grandmother. On May 14, 1929, H. L. Hunter was duly appointed temporary guardian of the estate of the minor and duly qualified as such by giving a bond fixed by the court in the sum of $2,000, which was duly approved by the county judge on the same day it was filed. The guardian so appointed then took the statutory oath as guardian, and on June 14, 1929, the temporary guardianship of H. L. Hunter was made permanent. Hunter then took down the $900 which had been deposited in the registry of the court in trust for the minor.

The present suit was instituted in June, 1929, by J. D. Greathouse, minor, acting by and through his legally appointed guardian, H. L. Hunter, to recover damages for the death of his mother growing out of the collision between the truck and the railway train, upon allegations of negligence on the part of the employees of the railway company in the following particulars: (a) The operation of the train at a speed of 50 miles' an hour; (b) failure to sound the locomotive whistle or bell; (c) failure of the employees to keep a reasonable lookout for persons approaching the crossing where the accident occurred; (d) the failure to exercise ordinary care to avoid the collision after the employees observed the truck approaching the crossing and the peril of its occupants. Damages were claimed substantially as asserted in the original suit instituted by the grandmother. In the petition so filed, the proceedings in the former suit were recited, and the judgment therein rendered was sought to be set aside on the ground that Mrs. Lizzie Greathouse, the grandmother, who instituted the suit as next friend to the minor, was interested adversely to him, was mentally incompetent, and that she was induced to agree to the same by fraudulent misrepresentations made to her by the defendant’s duly authorized agent, and that the settlement so made was an improvident one for the minor. The suit was filed by E. W. Napier, as attorney for the guardian.

Upon the trial of the case before a jury, a judgment was rendered in plaintiff’s favor for the sum of $15,000, with a credit allowed against the same of the $1,500 awarded to plaintiff in the original suit. That judgment was rendered upon special findings of the jury, sustaining the grounds-of negligence alleged in the petition, and rejecting the defenses of contributory negligence pleaded by the defendant; also that the settlement of the former suit was procured by fraudulent mis^ representations of one O; W. Portman made to Mrs. Lizzie Greathouse “that he had investigated the case and was familiar with the facts in the ease, and that he had talked to the railway company’s lawyers and stated to ‘ her that shfe could not recover anything in court”; that at the time she made, the settlement Mrs. Lizzie Greathouse. did not have “sufficient mental capacity to appreciate and understand the business in which she was engaged”; that the settlement so -made, was an improvident one for the minor; the damages assessed in favor of the minor was fixed by the jury in the sum of $15,000. From that judgment the defendant has prosecuted this appeal.

By appropriate pleadings, the defendant expressly pleaded the former judgment as res adjudicata and the settlement thereof as a bar to the present suit, and assignments of error are presented to the overruling of that defense. A number of other assignments are presented challenging the findings of the jury for lack of sufficient support in the evidence, and other matters not necessary now to be noted.

We shall first decide the question whether or not the defense of res adjudicata should have been sustained.

It is hardly necessary to cite authorities to show that the burden was upon the plaintiff to overcome the binding effect of the former judgment; and, indeed, in his pleadings he expressly assumed that burden. Under that rule, it was incumbent upon the plaintiff, not only to show that there existed valid grounds for setting aside the former judgment, but also to show.that the guardian was not guilty of negligence in failing to exhaust his legal remedies to set aside the judgment during the term of the court during which the same was rendered, and also some valid excuse for not prosecuting an appeal from that judgment. His want of diligence to pursue those legal remedies is fatal to this action in another suit to set aside and vacate the former judgment on equitable grounds. See Southern Surety Co. v. Texas Oil Clearing House (Tex. Com. App.) 281 S. W. 1045, and decisions there cited; Griggs v. Brewster (Tex. Civ. App.) 16 S.W.(2d) 839, and other decisions there noted.

Article 1994, Revised Statutes 1925, reads as follows:

“Minors, lunatics, idiots or non compos mentis who have no legal guardian may sue and be represented by ‘next friend’ under the following rules:
“1. Such next friend shall have the same rights concerning such suits as guardians have, but shall give security for costs, or affidavits in lieu thereof, when required.
“2. Such next friend or his attorney of record may with the approval of the court compromise suits and agree to judgments, and such judgments, agreements and compromises, when approved by the court, shall be forever binding and conclusive upon the party plaintiff in such suit.
“3. In such cases when a judgment is recovered for money or other personal property the value of which does not exceed five hundred dollars, the court may by order entered of record, authorize such next friend or other person to take charge of such money or other property for the use and benefit of the plaintiff when he has executed a proper bond in a sum at least double the value of the property, payable to the county judge, conditioned that he will pay said money with lawful interest thereon or deliver said property and its increase to the person entitled to receive the same when ordered by the court to do so, and that he will use such money or property for the benefit of the owner under the direction of the court. * * *
“6. If any person has an interest in such recovery, the court may hear evidence as to such interest, and order such claim, or such part as is deemed just, to be paid to whoever is entitled to receive the same.”

In Burke v. Northern Pac. Ry. Co., 86 Wash. 37, 149 P. 335, Ann. Cas. 1917B, 919, it was said: “In the absence of a showing to the contrary, it will be presumed that a judge who entered a consent judgment on the compromise of an infants’ claim made the inquiry as to its benefit to the infant which his duty required.”

In Thompson v. Maxwell Land-Grant & Railway Co., 168 U. S. 451, 18 S. Ct. 121, 126, 42 L. Ed. 539, the Supreme Court had this to say:

“It would bo strange, indeed, if, when those authorized to represent minors, acting in good faith, make a settlement of claims in their behalf, and such settlement is submitted to the proper tribunal, and, after examination by that tribunal, is found to be advantageous to the minors, and approved by a decree entered of record, such settlement and decree can thereafter be set aside and held for naught on the ground that subsequent disclosures and changed conditions make it obvious that the settlement was not in fact for the interests of the minors, and that it would have been better for them to have retained rather than compromised their claims. If such a rule ever comes to be recognized, it will work injury rather than benefit to the interest of minors, for no one will make any settlement of such claims, for fear that it may thereafter be repudiated. The best interests of minors require that things that are done in their behalf, honestly, fairly, upon proper investigation, and with the kpproval of the appropriate tribunal, shall be held as binding upon them as similar action taken by adults. * * *
“Ordinarily * * * a court, before entering a consent decree, will inquire whether the terms of it are for the interest of the infants. It ought in all such cases to make the inquiry, and, because it is its duty so to do, it will be presumed, in the absence of any showing to the contrary, that it has performed its duty. * ⅜ * The consent decree shows fully the terms of the settlement, and it certainly is not straining the presumption in favor of judicial action to assume that the court would not have permitted the entry of this decree, providing for. a settlement whose terms were thus disclosed, without being satisfied that such settlement was for the interest of the minors who were under its charge.”

To the same effect see Weaver v. Vandervanter, 84 Tex. 691, 19 S. W. 889. A minor is bound by the judgment in a suit instituted by next friend, who is recognized by the court. Article 1994, Rev. Statutes, quoted above; Day v. Johnson, 32 Tex. Civ. App. 107, 72 S. W. 426. It is also the rule that the law imputes to a litigant notice of such facts as were within the knowledge of his counsel. Bradford v. Malone, 49 Tex. Civ. App. 440, 130 S. W. 1013, 1015. A motion need not necessarily be termed a motion for a new trial provided it is in legal* effect such a motion and forms a sufficient basis for assignment of error. 3 Texas Jurisprudence, § 171, p. 263; Nalle v. Eaves (Tex. Com. App.) 5 S.W.(2d) 500.

In Waggoner v. Knight, 231 S. W. 357, by the Commission of Appeals, it was held, as quoted from the syllabus: “Where all the parties to the action in which a judgment was rendered were before the court on a motion to correct the judgment entry, and where the answer to the motion had raised the issue of fraud in the rendition of the judgment and had asked to have it annulled, the judgment on the motion correcting the judgment entry with no express disposition of issue as to the alleged fraud held res judicata as to the validity of judgment in subsequent action making attack thereon.”

In 1 R. C. L. 1051, it is said: “Amicus cu-rise has been defined as one who, as a stand-erby when a judge is doubtful, or mistaken in a matter of law, may inform the court.”

Similar definitions are given in Bouv. Law Dict. Vol. 1, p. 188.

In Olcott v. Reese (Tex. Civ. App.) 291 S. W. 261, it is said: “Clearly, the office of ami-cus curiae is to aid the court and is for the personal benefit of the court, and cannot be subverted to the use of a litigant in the case. Though the judgment recites that Judge Bland appeared as amicus curies, the facts show that his appearance was that of an interested party.”

’E. W. Napier, the attorney who wrote the letter set ont above to the defendant, giving notice of his employment by Mrs. Lizzie Greathouse to prosecute the minor’s claim for damages growing out of the accident, and who also represented Payne, the guardian, in procuring the latter’s appointment as guardian, and filed the motion to set aside the judgment in the former suit after he became the attorney for the guardian, was likewise attorney for the plaintiff in this suit, and conducted the case for the plaintiff upon the trial. In the absence of some explanation to the contrary, those facts and circumstances were sufficient to raise the inference that the motion made by the attorney, nominally as amicus curim, to set aside the former judgment, was made in the interest of the guardian whom the attorney then represented. And said attorney, who conducted the trial of the case for the plaintiff in the present suit, failed to rebut that inference by taking the stand as a witness and denying it. And since the facts pertaining thereto were peculiarly within his knowledge, it must be presumed that his testimony would have been favorable to the defendant on that issue; and that presumption is chargeable to the plaintiff himself through his said attorney. Farmers’ Guaranty State Bank v. Burrus Mill & Elevator Co. (Tex. Civ. App.) 207 S. W. 400, and authorities there cited; 10 R. C. L. p. 884, 885; 22 Corpus Juris, 115; 34 Corpus Juris, 449; 15 R. C. L. 757, par. 210.

Plaintiff in this suit having failed to allege and prove, as it was incumbent upon him to do, that the act of the attorney in filing and presenting the motion to set aside the former judgment was not authorized by the guardian, and having failed to request the submission of that issue to the jury, and no such issue having been passed on by the jury, and the grounds alleged in that motion being substantially the same as the grounds relied on in the present suit for setting aside the former judgment, it follows that the order overruling that motion, from which no appeal was prosecuted, constituted a bar to the I>resent suit, independently of the issue as to whether or not Payne, the guardian, was chargeable with negligence in failing to take legal steps which were available to him, to complain of the former judgment by a motion for new trial, and to prosecute an appeal therefrom in the event that motion had been overruled. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

Even though it could be said that the judgment of the court overruling the motion made to set aside the former judgment was not res ad judicata as against the guardian representing the minor, yet Payne, the guardian, as soon as he was appointed, which was three days after the rendition of the judgment, was chargeable with the duty to ascertain the status of that litigation since reference to the claim was expressly made in his application for appointment as guardian. Furthermore, in his resignation as guardian, filed on January 25, 1929, he reported that there was on hand, belonging to the minor, $900 in the registry of the court, which had been recovered in the former suit. Even at that time it was not too late to file a motion for a new trial on the same grounds that had been alleged by his attorney, nominally as amicus curise, if he could have made proper showing that he was not guilty of negligence in failing to sooner learn of the grounds upon which that motion was predicated. And in this connection it is to be noted further that the term of the district court at which the former judgment was rendered on December 28, 1928, did not adjourn until January 25,1929, more than one month after the guardian’s resignation. It was incumbent upon the plaintiff in this suit to allege and show a sufficient excuse for the failure of Payne, the former guardian, to take legal steps by motion for new trial and appeal to set aside the former judgment. That issue was not submitted to the jury, nor was there any request for its submission by the plaintiff, and therefore he must be held to a waiver of that issue. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

The alleged mental incapacity of Mrs. Lizzie Greathouse to make a binding contract of settlement of the' former suit could not be a ground for vacating the former judgment, unless it could be said that but for such incapacity she would not have agreed to the settlement. While there was a finding by the jury of such mental incapacity, no issue was submitted or requested as to whether or not Mrs. Greathouse would have made the agreement if she had been mentally normal;. nor was there any finding by the jury on that issue; and therefore plaintiff is held to a waiver of any right to set aside the former judgment solely by reason of the finding of mental incapacity. And in this connection it is to be noted further that the proof showed conclusively that the compromise of the former suit was with the consent and approval of plaintiff’s attorneys of record, who were reputable attorneys of the court, and whose good faith in the matter has not been challenged in this case, either by pleading or proof. Griggs v. Brewster (Tex. Civ. App.) 16 S.W.(2d) 839; Alexander v. Good Marble & Tile Co. (Tex. Civ. App.) 4 S.W.(2d) 636.

Appellee stresses the point that the compromise settlement and the judgment rendered thereon was void by reason of the personal interest of Mrs. Lizzie Greathouse arising from the agreement to settle both her claim and that of the minor for the aggregate sum of $2,700; $1,200 of which was to be paid to the grandmother and the balance to the minor. In that connection appellee cites the decision of this court in Gulf, C. & S. F. Ry. Co. v. Lemons (Tex. Civ. App.) 152 S. W. 1189. That was a suit to set aside a settlement of a claim due to a minor which was approved by the county court. The suit was tried in the district court upon a certiorari from the county court. The statute which authorized that procedure expressly provided that the trial of the case in the district court under such circumstances would be a trial de novo. It thus appears that, while the pleadings attacked the judgment of the county court approving the settlement as well as the agreement to settle, in the trial of the case in the district court it was not necessary to set aside the judgment of the county court, since the .appeal had that effect, and the only issue tried in the district court was whether or not the agreement of settlement should be set aside. It thus appears that that decision is clearly distinguishable from the present suit, in that this suit was not a suit to rescind and cancel the compromise agreement, but to set aside the former judgment; involving different principles and a more burdensome undertaking.

Nor was there any finding of the jury that the fact of personal interest of Mrs. Lizzie Greathouse in the agreement for compromise or the alleged inability of Mrs. Lizzie Greathouse who testified upon the trial of the former case to understand the legal effect of the compromise agreement, or the alleged fraud inducing the execution of that agreement, or any other fact relied on by plaintiff in this case to vacate that judgment, was not brought to the attention of the court at the time the former judgment was rendered, either through fraudulent concealment or by neglect or oversight. And it is to be noted further that the plaintiff in this case did not request ihe submission of any such issue, or issues. Converse v. Davis, 90 Tex. 402, 39 S. W. 277; Weaver v. Vandervanter, 84 Tex. 691, 19 S. W. 889; 2 Freeman on Judgments (5th Ed.) § 727, p. 1538.

It is to be remembered further that it was not incumbent upon the defendant to request .the submission of any of those special issues or any other issue upon which plaintiff’s right of recovery depended. Osceola Oil Co. v. Stewart Drilling Co. (Tex. Com. App.) 258 S. W. 806.

For the reasons noted above, the trial court erred in overruling the defendant’s motion for an instructed verdict on the defense of res ad judicata.

It therefore becomes unnecessary to discuss, and we do not determine, the merits of numerous other assignments of error presented in appellant’s brief.

Accordingly the judgment of the trial court is reversed, and judgment is here rendered in favor of the appellant.


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    LONE STAR GAS CO. v. HAIRE et al.
    No. 12473.
    Court of Civil Appeals of Texas. Fort Worth.
    May 30, 1931.

      Marvin H. Brown, of Fort Worth, for appellant.
    McLean-Scott & Sayers, of Fort Worth, for appellees.
   BUCK, J.

Mrs. Mattie Haire, joined pro forma by her ■ husband, Grady Haire, sued the Lone Star, Gas Company, a corporation, and for cause of . action alleged that on August 16, 1929, plain-. tiff was1 driving and operating a Chevrolet. sedan, and at the time complained of was driving the same immediately behind a truck owned and operated by the defendant corporation. That defendant’s truck was headed in a westerly direction and plaintiff’s automobile was likewise headed in a westerly di* rection. That both motor vehicles were being operated on a public highway within the confines of the city limits of Fort Worth, said highway running, lying, and extending in' an ■ easterly-westerly direction. That defend- ’■ ant’s truck was approaching North Fort '• Worth, and about 500 yards east thereof plaintiff was following said truck and had' been following said truck in her automobile for • approximately three-quarters of a mile. That previous to said truck arriving at the above- ' described point, plaintiff had undertaken on numerous occasions to pass the truck and get ahead of it, and each time plaintiff tried to • pass said truck she sounded suitable, audible, and proper signal by means of blowing the horn of her car, thereby apprising the driver of said truck of her intention and desire to get ahead. That instead of permitting her to pass, each time she undertook to pass, the., truck driver swerved the truck to the left, placing it in front of her car. That as plaintiff approached the point where plaintiff’s car was forced from the road, she again sounded her horn as she was overtaking said ' truck. That upon' the sounding of said horn and immediately thereafter, the driver of the truck, who was the agent of the corporation . above named, directed and steered the truck ’ to the right of the road, giving ample room ' to drive ahead and pass said truck to the left . of same. That as plaintiff undertook to pass ' said truck on the proper left-hand side of” same, she drove her car until its front end' was immediately opposite and just behind the . seat of the truck driver, and that both motor vehicles were proceeding in the same direction, and when her car had reached and attained the point just opposite the seat of the truck driver, the truck driver swerved to the left, thereby forcing and driving plaintiff’s car from the highway and into a ditch some 0 or 8 feet deep, causing said car to bo demolished and said plaintiff to sustain serious, painful, and permanent injuries.

Plaintiff further alleged that defendant’s driver owed her the duty of operating and driving his truck as near the right-hand boundary of said highway as possible, thus allowing her automobile reasonable free passage to the left, and owed her the further duty of giving such assistance as the circumstances reasonably demanded in order to obtain clearance and avoid forcing and driving her car from the highway, and owed her the further duty to give way to the right in favor of her car as said truck was about to be overtaken; and owed her the further duty of keeping, operating, and driving said truck on the right-hand side of said highway as the same was being overtaken and passed.

Plaintiff further alleged that defendant corporation, its servant, agent, and employee, was guilty of negligence and carelessness in one or more of the following particulars, to wit: (a) In failing to yield the road and operate and drive said truck to the right upon audible and proper signal being given by plaintiff; (b) in failing to operate and drive said, truck on the right-hand side of the road after it became known to the operator and driver of the truck, or in the exercise of ordinary care should have been known to the operator and driver of said truck, that plaintiff’s automobile was in the act of passing said truck; (c) in driving and swerving said truck to the left, thereby forcing plaintiff’s car from the highway; (d) in failing to operate and drive said truck as nearly as possible to the right-hand boundary of said highway.

Plaintiff further alleged that all of the above set out acts of negligence and carelessness, both as to acts of omission and commission, jointly and severally, were the direct and proximate cause of the injuries and damages sustained by her.

Plaintiff alleged that as her automobile was driven and forced from the highway, the same dropped some 6 or 8 feet and came in violent contact with a tree which was some 5 or 0 inches in diameter, and so great and violent was the contact of plaintiff’s car with said tree that the same was broken. That as said car struck the ground and the tree, the tree was broken and she was thrown forward and her face pnd mouth came in contact with the steering wheel or some other part of said car; that her body was bruised and her entire nervous system severely shocked. That so great was the bruise to her face and month that seven of her teeth were knocked out; that her lower lip was cut and her lower jawbone received such a shock and blow that the teeth apd nerves therein were destroyed. That as a direct consequence plaintiff has been, or will be, compelled to have some six or seven teeth removed. That plaintiff’s body was bruised from her head to her feet; that she sustained a severe bruise to her right arm ; that she sustained a serious bruise to her lip, causing the same to become black, blue, and swollen; and sustained a severe bruise to her nose, causing the same to swell up; and sustained a slight concussion to her head; that plaintiff, upon the occasion complained of, was riding with her young daughter, for whose safety she greatly feared, as well as her own, and such fact added to the severe shock to her entire nervous system; that plaintiff has been confined to her bed up to the filing of tjiis petition; that she has been disfigured by virtue of the loss of her teeth, and such disfigurement is permanent and humiliating, causing her to suffer not only physical pain, but mental pain and humiliation, shame, and embarrassment ; that as a result of the said conduct on the part of the defendant corporation, its servant, agent, and employee, in causing said collision, she will continue to suffer mental and physical pain, shame, and humiliation in the future and during the remainder of her life; that she has been permanently disfigured and cannot control her nerves, cannot sleep at night, and as a result of said negligence has been rendered very nervous and will remain in a highly nervous state for an indefinite period of time. She asked damages in the sum of $15,000.

Defendant filed its answer, consisting of a number of special exceptions, some of which will be hereinafter noted, a plea of contributory negligence on the part of plaintiff, and a plea that defendant’s servant was driving its truck on the right-hand side of the public highway and that said public highway was broad enough to give the plaintiff ample room in which to pass and that defendant’s driver did not swerve or move, the truck at any time toward the center'' of said highway; that plaintiff in attempting to drive around defendant’s truck ran her left wheels into some loose gravel that was laid on the road at said point, and when the left wheels of her car struck the gravel it skidded and she lost control of the same, and the car ran off of the highway. That said accident was not caused by any negligence on the part of defendant’s driver.

The trial court submitted the cause to a jury on special issues, and in answer thereto the jury found: (1) That as plaintiff attempted to xiass the defendant’s truck on August 16, 1929, the' driver of said truck swerved the same to the left. (2) That the driver was negligent as that term- was defined by the court.. (3) That such negligence was the proximate cause of the accident to the plaintiff. (4) That plaintiff gave an audible signal of her intention to pass defendant’s truck just prior to attempting to pass the same. (5) That the rate of speed at which the plaintiff was driving as she attempted to-pass the truck -was' negligence. The court bad theretofore instructed the jury that negligence is failure to use ordinary care, and that 20 miles an hour is of itself negligence, and that a speed of 20 miles an hour or less may or may not he negligence, and such driving is to be meásured by the definition of negligence as given above. (6) That Such negligence, of which the jury found plaintiff was guilty in driving more than 20 miles an hour, was not a proximate cause or a cause which co-operated or concurred with any other cause to bring about the accident to plaintiff. (7) That with reference to the condition of the highway on the left-hand side at the place where the plaintiff attempted to pass defendant’s truck, plaintiff was not negligent in attempting to pass defendant’s truck. (8) That plaintiff used ordinary care to keep her car under ■ control as she attempted to pass defendant’s' truck.' (9) That the accident did not happen to plaintiff without the negligence of either the plaintiff or the driver of the truck. The jury fixed the damages to which plaintiff was entitled at $2,250.

The court rendered judgment .that plaintiff, joined pro forma by her husband, have and recover of and from the defendant, Lone Star Gas Company, ,the sum of $2,250, with interest thereon at the rate of 6 per 'cent, per an-num from April 28, 1930, together with all costs of court. Prom this judgment the defendant has appealed.

Opinion.

Defendant excepted to the action of the trial court' in overruling its exception to this part of plaintiff’s petition: “That previous to'said truck arriving at the above described point, plaintiff had undertaken on numerous occasions to pass the said truck and get ahead of it:” Defendant excepted because the allegation was improper and indefinite, and was a mere opinion and conclusion of the pleader and does not attempt tó set forth the facts relied upon and the same is prejudicial to the rights of defendant and inflammatory in its nature.

We do not believe the court erred in not sustaining this exception. We think the allegations were proper, in order to show that the plaintiff had undertaken to pass the truck at various times before the accident and had given audible and proper signals by means of blowing the horn of the ear. Therefore, we overrule the first, second, and third propositions.

Under the fourth and fifth propositions, appellant excepts to such allegation as “suitable and proper” signals, because the same constituted mere conclusions and opinions of the pleader and are improper and inflammatory. The statute, article 801 of the Penal Code, subd. D, provides: “It is the duty of the driver, rider, or operator of a vehicle about to be overtaken and passed to give way to the right in favor of the overtaking vehicle on suitable and audible-signal, given by or on behalf of the operator, driver or other person" in charge and control of such overtaking vehicle, if such overtaking vehicle be a motor vehicle.” -

We do not see any objection to plaintiff alleging that she gave suitable and audible signal, as these terms are used in the statute, to indicate the character of the signal that must be given by an overtaking vehicle.

Under the seventh proposition appellant assigns error to the action of the trial court in failing to sustain its exceptions to plaintiff’s petition, wherein she alleged that when her car reached “a point just opposite and just behind the seat of the truck driver, the truck was swerved to the left, thereby forcing and driving plaintiff and plaintiff’s ear from the highway and into a ditch some six or eight feet deep.”

Appellant urges that the evidence discloses-that there was a broad road at the point off the accident, with ample room to pass, and’ plaintiff was not forced or driven from the-highway because of want of space in which) to drive. This appears to the court an effort to object to the pleadings of plaintiff alleged here because some of the evidence, did not sustain such allegations. Therefore, propositions 7 and 8 are overruled.

The ninth and tenth propositions attack the ruling of the trial court in overruling defendant’s exceptions to this part of plaintiff’s petition: “That upon the occasion complained of she was riding with her young daughter for whose safety she greatly feared, as well as her own, and such fact added to the severe shock to her entire nervous system.” Defendant excepted to this proposition because improper, inflammatory, and prejudicial. We do not think the exception is good, and overrule the same.

Under the eleventh and twelfth propositions complaint is made of the testimony of David Moses, Jr. He testified that he did' not see the accident but when he got to, the, scene of the accident there was a large truck standing and a bunch of men; that the ear in which Mrs. I-Iaire had been riding was in the ditch, off at the south side of the road; that he was driving toward the east. The question was asked him: “On which side of the road was the truck when you got there?” The defendant objected to this testimony because it was irrelevant, immaterial, and inadmissible on any issue in the case. The objection was overruled, and the witness answered : “My recollection is that the truck was, on the south side of the road.”

It is urged in appellant’s brief that the-only purpose of this testimony was to prove that the truck driver was driving the truck on the left-hand side of the road at the time of the accident, and to corroborate plaintiff and her little daughter in their contention that the truck driver swerved the truck to the left. If this was the purpose, we think it 'admissible, nevertheless. Young Moses was present at the scene of the accident immediately after the car had been driven into the ditch, and we think it perfectly proper for him to testify as to where the truck was at that time. It is true that the presence of the truck on the left-hand side of the road did not prove that it had swerved to the left or had been driven to the left-hand side, but was a circumstance which the Jury could consider in determining whether or not the truck driver had swerved his car to the left or had driven on the left-hand side of the road.

Under propositions 13, 15, and 16 it is urged that plaintiff did not in her petition allege that she was compelled to have to use false teeth because of her injuries, nor did she allege that the wearing of false teeth marred her looks or caused her to suffer humiliation. That with the lack of such pleading, the court permitted counsel for plaintiff to ask her: “It is a fact that these teeth — these false teeth, are you aware of the fact that they are false and not your own?” And, “Does the fact that you have that scar and false teeth there, does that cause you to suffer any humiliation?” Defendant objected to this question because leading and suggestive, and no proper predicate had been laid for it as the question is propounded. The court overruled the exception, and the witness answered : “The fact that I have this sear and these teeth does cause me some humiliation.”

Plaintiff pleaded that she had been confined to her bed up to the filing of her petition, and that she had been disfigured by the loss of her teeth, ánd that such disfigurement is permanent and humiliating, causing her to suffer not only physical pain, but mental pain, and humiliation, shame, and embarrassment. Mr. Grady I-Iaire testified: “My wife lost all of her under teeth in this accident. She had seven of her under front teeth, and she had five of thepi removed. Up to the present time my wife has lost five of her lower teeth and knocked some of the upper teeth out of the plate, and had to have the plate made over again.”

Therefore it is shown that she lost five of her front teeth in the accident and she has pleaded that such loss has caused her humiliation and embarrassment. We overrule these propositions. •

Counsel for plaintiff asked each of the several witnesses for the defendant if they called a doctor and ever inquired about plaintiff’s condition after the accident, or ever went to the hospital to inquire, or ever inquired of her husband as to her condition. In Estes v. Davis, 28 S.W.(2d) 565, 569, the Waco Court of Civil Appeals said: “Appellant complains of the action of the trial court in requiring him to testify over his objection whether he visited appellee after the accident, his answer thereto being that he did not do so. Appellant also complains of the action of the court in permitting appellee’s attorney in his closing argument to state to the jury, in substance, that he (appellant) was not interested enough in appellee to even visit him while he was suffering from his injuries, and that, if he (counsel) had injured even a dog belonging to one of the citizens of his town, he would at least evince enough interest to go and see how he was getting along. The accident occurred September 30, 1928. Appellee testified that as a result of his injuries he was confined to his bed for about a week and a half, and that he returned to work in about three weeks. Appellant testified fully with reference to the physical appearance and condition of appellee while he remained at the scene of the accident. We have found no testimony of appellant with reference to his physical condition after that time. The trial was had in May, 1929. We think the testimony complained of was immaterial and irrelevant, and the emphasis placed thereon by such argument improper. Since reversal will be ordered on the grounds above stated, further discussion of these matters is unnecessary.”

While Judge Gallagher, Chief Justice of the Waco Court of Civil Appeals, in writing the opinion of Estes v. Davis, cites no authority for the holding of the court in regard to this matter, and we axe cited to no other case holding such testimony as inadmissible, yet the writer’s high opinion of the judicial learning of the Waco court, and especially that of Judge Gallagher, inclines him to give a listening ear to the holding of the Waco court in this matter. There seems to be no proposition in appellant’s brief of any argument by counsel for appellees with reference to this testimony, although the fact that he asked several witnesses for defendant the same questions with reference to whether or not they visited Mrs. Haire during her sickness or inquired about her condition, would indicate some purpose in asking the questions, and that in pursuance he intended to and probably did comment on such failure of the witness to show enough interest in the condition of the plaintiff to at least inquire of her condition. While we are doubtful as to whether such evidence was admissible over objection, yet in view of the other objections raised in subsequent propositions, we will not decide the question, and make no ruling with reference thereto.

The court defined “proximate cause” as follows: “Proximate cause is that cause which in a natural, continuous and unbrc&«n sequence produces an event, and without which that event would not have been such that a person of ordinary care would have reasonably foreseen that the injury would have occurred. There may be more than one proximate cause.”

The defendant objected to this charge in tlie following words: “The same is an improper. charge in this case and under the record and facts testified to; and said charge is vague and indefinite and confusing and assumes that the jury understands the meaning of a ‘natural, continuous and unbroken sequence,’ and the charge of the court fails to define such a sequence or to advise the jury what the court means by such a sequence.”

.In Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W.(2d) 570, the court sustained the objection to practically the same charge on proximate cause, and to the failure of the trial court to define the term “new independent cause.” It has been held that the failure of the trial court to properly define “actual and exemplary damages” is error. King v. Sassaman (Tex. Civ. App.) 54 S. W. 304. That the term “substantial compliance” should be defined by the court to the jury. Dunlap Hardware Co. v. Elmberg Co. (Tex. Civ. App.) 252 S. W. 1098.

Article 2185, Rev. Civ. Statutes of 1925, reads as follows: “The charge shall be in writing, signed by the judge, filed with the clerk, and shall be a part of the record of the cause. It shall be prepared after the evidence has been concluded and shall be submitted to the respective parties or their attorneys for inspection, and a reasonable time given them in which to examine and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived. Failure of the court to give reasonable time to the parties or their attorneys for examination of the charge shall be reviewable upon appeal upon proper exception. The judge shall so frame his charge as to distinctly separate questions of law from questions of fact, and not therein comment on the weight of the evidence, and so as to instruct the jury as to the law arising on the facts; and shall only submit controverted questions of fact.”

Under the above article it has been held that it is the duty of the trial court to define and explain legal terms and expressions. Davis v. Pettitt (Tex. Com. App.) 258 S. W. 1046; N. Texas Traction Co. v. Jenkins (Tex. Civ. App.) 266 S. W. 175; Owens v. Navarro County Ind. School Dist., 115 Tex. 263, 280 S. W. 532; Wichita Falls & S. Ry. Co. v. Hamilton (Tex. Civ. App.) 37 S.W.(2d) 755.

In Hines, Director General of Railroads v. Hodges, 238 S. W. 349, by Chief Justice Conner of this court, writ of error refused, it was held that explanatory instructions as to the law of the case are proper, and in Some circumstances necessary, in cases submitted upon special issues, under article 1984a, Vernon’s Sayles’ Ann. Civ. St. 1914. The majority conclude that the term “continuous and unbroken sequence” is a legal term and a definition thereof should have been given.

The court submitted to the jury issue No. 1 as follows: “As the plaintiff attempted to pass the defendant’s truck on August 16, 1929, did the driver of said truck swerve the same to the left?” Defendant objected to this issue (1) because the same is not supported by the evidence in the case; (2) because the evidence is insufficient tó show that the driver of defendant’s truck knew that the plaintiff was attempting to pass the truck at the time that she attempted to pass the same; (3) because the evidence is insufficient to show that the driver of defendant’s truck saw the plaintiff while she was attempting to pass said truck and before she lost control of her car and before her car was. going off the road hnd into the ditch; (4) because the issue and charge assumed that the driver of defendant’s truck heard the plaintiff give a signal and knew that she was trying to pass the truck; (5) because the issue and charge, as framed, is on the weight of the evidence and leading and suggestive. We will dispose of this proposition with the next.

The court submitted issue No. 2 as follows: “If you have answered No. 1 ‘no,’ do not answer any further questions, but if ‘yes,’ then answer: Was the driver negligent, as that term is above defined, in swerving the truck to the left, if you have found that he did, as the plaintiff attempted to pass the same?” The defendant objected to the giving of this issue because the evidence was insufficient to support the giving thereof; and because such issue was not supported by the evidence in the case; because the evidence is insufficient to show that the driver of the. truck ever saw the plaintiff or knew that the plaintiff was attempting to pass the truck until plaintiff had lost control of her car and was going into the ditch, or that the driver ever heard the plaintiff give any signal before attempting to pass. Plaintiff testified that she had given an audible and proper signal by blowing the horn of her ear several times, and that the defendant’s driver did swerve to the right just before she had driven alongside the truck and then he again swerved to the left. While the defendant’s driver testified that he had not heard a signal given by -the plaintiff, we think it was a question for the jury to determine whether or not said driver had heard the signal and knew,-that plaintiff was attempting to pass. We overrule this proposition, and also the twenty-fifth proposition.

The court submitted issue No. 10 to the jury as follows: “Did the plaintiff use ordinary care- to keep her automobile- under control as she attempted to pass the defendant’s truck?” To which the jury answered, “Yes.” Defendant objected to such issue “because the same is not raised by the pleadings in the case.” This issue was favorable to defendant, and we see no reason why the court should not have given the same.

Plaintiff testified that she had a speedometer on her car; that the truck was traveling about 20 miles an hour when she tried to pass it; and that she did not know whether she was going faster than that when she tried to go around it or not; that she did not get around.

The jury found in answer to special issue submitted that she was guilty of negligence in running her car as fast as she did while she was attempting to go around the truck, but that such negligence was not the proximate cause of the accident. We think this testimony is sufficient to justify the trial court in submitting the issue and that nothing said in T. & P. Ry. Co. v. Moore, 8 Tex. Civ. App. 289, 27 S. W. 962, by this court, is contrary to our holding.

Appellant 'insists that the charge of the court permitting recovery ‘(for the injuries sustained by plaintiff in this accident” is erroneous ' and should not have been given. Plaintiff and her husband. both testified to her injuries and to the fact that five of her front teeth were removed as a result of the injuries, and that she was bruised and had a cut on her lower iip, and in fact testified to all the injuries she had pleaded. Therefore, there were no injuries pleaded that were not covered by the testimony and none that was covered by the testimony that she did not plead. Hence, we think there could have been no error in submitting the issue as the court submitted it. Therefore we overrule the twenty-ninth proposition.

Objection is raised to the submission of a charge permitting the jury to find damages for physical pain and suffering. It is urged that the testimony of the doctors does not raise the issue. Mrs. Haire testified that she had a backache a great deal of the time; thát her lip was split open and a scar was there. Her husband testified that she was very nervous since the accident and had not been' nervous prior to the accident, and that she did not rest as well now as she did before ' the accident; that' she always complains of backache. Dr. F. P. Smith testified that he had examined Mrs. Haire since the accident and that she has a plate of five teeth in the lower jaw; that he noticed that' she was very nervous and that he had not noticed such' nervousness in his casual entering of the store where she worked and talking to her before the accident. We think there is sufficient evidence to support the issue of permanent injuries.

Under propositions 43, 44, and 46, complaint is. made to the answer of the jury .to issue No. 8, as follows: “With reference to the condition of the highway on the left hand side at the place where the plaintiff at-, tempted to pass defendant’s truck, was the plaintiff negligent in attempting to pass the said defendant’s truck?”

The evidence shows that there was some loose gravel at the left-hand edge of the highway about where plaintiff attempted to pass defendant’s truck, and there is some testimony by defendant’s witnesses that plaintiff’s car skidded when she drove into it and tried to go around the truck, and that she swerved her ear, lost control, and drove it into the ditch, and was not holding to the steering wheel when she did so. Appellant has cited no authorities under these assignments, and we conclude that the trial court did not err in submitting the issue as given to the jury.

Proposition 49 complains that as the plaintiff sued for personal injuries to herself and was joined pro forma by her husband, and as the judgment recites that plaintiff, joined pro forma-by her husband, recov-, er the damages-assessed; that. Mrs. Haire was not a proper plaintiff to sue for such damages, and cites Yellow Cab & Baggage Co. v. Smith (Tex. Civ. App.) 30 S.W.(2d) 697. In .that case the plaintiff sued individually and as guardian of the person and estate of Leroy Smith, a minor,"-and she was joined pro forma by her husband, the father of the boy. Irrespective of a holding in this case, we think, under the law, damages received by a wife for personal injuries to her constitute community property of the husband and wife. In Teague v. Fairchild (Tex. Com. App.) 15. S.W.(2d) 585, it was held that money received for personal injuries to a wife did not constitute a part of her separate estate, but was .community property. The case of Arnold v. Leonard, 114 Tex. -540, 273 S. W. 799, 801, is cited, as also the cases of Koy v. Schneider, 110 Tex. 378, 218 S. W. 479, 221 S. W. 880; Dickson v. Strickland, 114 Tex. 176, 265 S. W. 1012.

In T. C. Ry. Co. v. Burnett et ux., 61 Tex. 638, the Supreme Court held that in a suit for personal injuries to the wife, the husband was the proper plaintiff and that the wife was neither a necessary nor a proper plaintiff. The court reversed and remanded the cause because the trial court overruled the exception directed to the joinder of the wife as one of the plaintiffs in the suit.

Appellee practically concedes that the damages sought to be obtained constituted community property, and urges (1) that Mr. Haire’s conduct amounted to an appearance by him in the case; (2) that such conduct constituted a gift by the husband to the wife of the judgment obtained. He cites the following cases: Ames v. Freeman, 83 Kan. 585, 112 P. 160, by tbe Kansas Supreme Court; Market Street Bank v. Stumpe, 2 Mo. App. 545; S. P. Co. v. Ulmer, 286 S. W. 193, 194, by tbe Texas Commission of Appeals, approved by tbe Supreme Court; Teague v. Fairchild, supra, as supporting tbe contention made by appellees.

In Ames v. Freeman, supra, tbe court beld that where a defendant is served with a void summons issued by a justice of -the peace, but at tbe time named in the summons, appears before the justice of tbe peace and submits himself to be sworn as a witness by tbe plaintiff and testifies as to tbe merits of tbe case, such conduct amounts to a voluntary appearance, and is binding on the defendant.

In S. P. Co. v. Ulmer, supra, tbe court beld that a judgment awarding the entire recovery to tbe wife, joined by her husband in tbe suit for tbe injuries to her, was- final, though tbe husband was entitled to reimbursement for expenses incurred, under article 4615, Rev. Civ. Stats., 1925. Tbe court said:

“When tbe court awarded all of such recovery to tbe wife, it necessarily meant that nothing was thought to be due tbe husband by tbe court. After giving it all' to tbe wife, there was no necessity to say that nothing was awarded tbe husband. There was nothing left for him to recover. * ⅜ *
“It may be said that tbe husband, for bis own protection, and for tbe benefit of tbe community estate, should have been awarded a part of this recovery under tbe statute. But, if he was willing to waive bis interest in this recovery, it seems to us that such action on his part is no concern of tbe railway ■company. * ⅜ * Evidently tbe husband was either willing to give all tbe recovery to bis wife, or be felt that be knew her and could trust her to pay her hospital and doctor bills, and also satisfy her attorneys for recovering the judgment.”

In Teague v. Fairchild, supra, quoting from the beadnotes, it was beld that: “Proceeds of judgment recovered by wife for personal injuries when received constituted part of community estate of husband and wife, but husband having by conduct, in allowing wife to deposit money in bank, clearly evidenced intention to make gift to wife, such action on his part bad effect of making fund part of wife’s separate estate.”

In view of another trial, we conclude that the court improperly adjudged tbe recovery to the wife, and that tbe judgment obtained belonged to tbe community property, and that tbe husband was a proper plaintiff to prosecute such suit. But, in view of another trial, we think tbe husband should be made .a party plaintiff at interest, and that tbe wife should either be dismissed, which, under the holding in T. C. Ry. Co. v. Burnett, supra, is proper, or that she, should join with her husband in the suit. Tbe writer is inclined to tbe view, under tbe circumstances of tbe case, that the husband would be es-topped to sue for damages for the injuries to his wife. But the majority believe this proposition should be sustained.

For the reasons stated, the judgment below is reversed and. remanded.


author: JACKSON, J.

text:
    CROSBY et al. v. SLAUGHTER et al.
    No. 3607.
    Court of Civil Appeals of Texas. Amarillo.
    May 6, 1931.
    Rehearing Denied June 17, 1931.
    Edward J. Hamner, of Sweetwater, and Ben H. Kelly, of San Antonio, for appellants.
    Beall & Beall, of Sweetwater, and T. L. Price, of Tahoka, for appellees.
   JACKSON, J.

This is the second appeal in this case, and the former opinion of this court is reported in 289 S. W. 1060.

Since the former trial, the judgment of whiph was reversed in said opinion, John B. Slaughter, the appellant in the-ease, died, and by permission of the court his heirs, Isa-bell Slaughter, his surviving widow, J. B. Slaughter, Jr., and Mrs. F. E. Lott, joined pro forma by her husband, F. E. Lott, were substituted as plaintiffs for J. B. Slaughter, deceased.

The defendants are the saíne, and with the exception of the substitution of the parties plaintiff, neither the plaintiffs nor defendants have-' made any material changes in their pleadings and reference is here made for a statement to the case of Slaughter v. Crosby et al., supra, which discloses the land in controversy and. the contention of the respective litigants relative .to the correct location thereof.

To assist in understanding the location of the land, we refer to the plat presented in an opinion on page. 633 of 218 S. W. (Brooks v. Slaughter [Tex. Civ. App.]), with the limitations therein stated as to the correctness of such map. The controversy involves the true location of the south boundary line of section 1328 in block 1, H. & O. B. R. R. Co., and the true .location of the north boundary line of section 10, block 8, T. T. R. R. Co., in Garza county, Tex.

In response to a special issue submitted by the court in his main charge, the jury found, in effect, that the line in controversy should be located where the plaintiffs claim it to be. In response to a special issue requested by the defendants, the jury answered that the plaintiffs had established by a preponderance of the evidence that the defendants’ lands were included in the boundaries of section 1328 as located by the original surveyor. 'On these findings the plaintiffs were given judgment for the land in controversy and survey 2, block L. G., the land claimed by the defendants under an award from the land commissioner of the state of Texas, was canceled and all deeds, transfers, and records pertaining to the award were annulled and held for' naught as a cloud upon plaintiffs’ title. The judgment also disposes of the Issues' of improvement in good faith and permitted a recovery on the warranties pleaded, but no complaint 'is made of the disposition’ of such matters and no further notice will be taken thereof.'

From the judgment decreeing-plaintiffs title and possession to the land in controversy, the defendants prosecute this appeal.

The first assignment presented by appellants challenges as error the action of the trial court in sustaining appellees’ exceptions to their 'plea of res judicata and estoppel.

In the former opinion, Slaughter v. Crosby et al., supra, the judgment is reversed and the cause remanded because the court directed a verdict in favor of the appellees, who are appellants here, on their plea of res judi-cata, holding that the opinions in cause No. 92, Brooks et al. v. Slaughter (Tex. Civ. App.) 218 S. W. 632, and Brooks et al. v. Slaughter (Tex. Civ. App.) 232 S. W. 856, adjudicated the location of the sojitlt boundary line of section 1328 south of the west half of the southwest quarter of said section, but that the south boundary line, of said section beginning 475 varas east of its southwest corner was not involved in cause No. 92 and that the plea of res judicata on that portion of the line was not conclusive.

We reached the conclusion on the former appeal that the evidence was not such as to authorize the court, as a matter of law, to sustain the plea of res judicata on the entire line without submitting such issue to the jury.'

In cause No, 92, in addition to claiming the south half of section 1326, John B. Slaughter asserted title to the west half of the southwest quarter of section 1328, which he described by metes and bounds as is shown in Slaughter v. Crosby et al. (Tex. Civ. App.) 289 S. W. 1060. In Brooks et al. v. Slaughter (Tex. Civ. App.) 232 S. W. 856, supra, J. B. Slaughter recovered and was given judgment for the south half of section 1326 and the west half of the southwest quarter of section 1328, but in that opinion the court expressly excluded from the controversy the land involved in this suit because the appellees therein, who are appellants here, failed to show they had title to the land involved in this case.

We are of the opinion that the court erred in sustaining appellees’ exceptions to appellants’ answer and determining as a matter of law that the appellants were not entitled to urge res judicata and estoppel as a defense to appellees’ cause of action.

The appellants assail as error the action of the trial court in refusing to instruct the jury, at their request, in effect that survey 1328, block 1, should be located by a line projected south from Cobb’s corner to intersect with a line projected west from corner E and from this point of intersection the south boundary line of survey 1328 should be determined by true course and distance as called for in the original field notes of the sections intervening between such point of intersection and the south boundary line of 1328.

In Brooks v. Slaughter, 218 S. W. 632, 637, supra, Judge Boyce of this court, after discussing the various contentions as to the construction to be given to the calls of the field notes in block 1, held that under the circumstances, survey 1328 in block 1 should be located by lines on true course south from Cobb’s corner and west from the corners D or E. In the opinion for -rehearing, he says: “To be specific, the northeast corner of section 1313 should be located at the intersection of a line run south from the Cobb corner with a lino run west from corner E, and surveys 1326 and 1328 should be located from this position of section 1313 by true course and distance according to the calls of their field notes and those of the intervening surveys back to said section 1313.”

In Brooks et al. v. Slaughter (Tex. Civ. App.) 232 S. W. 856, supra, Judge Boyce again held that sections 1326 and 1328 should be located on true course from the Oobb corner and corner D or E, and not on a course to run at right angles to a line between the Black Bottle corner and corner D or E.

The trial court erred in refusing to follow the instructions contained in these two opinions and direct the jury that the south boundary line of 1328 should be located according to such instructions.

Appellees’ various contentions relative to the proper construction of the surveys in block 1, the. apportionment of the excess in said block north and south among said surveys, the location of the south boundary line of 1328, and their contention relative to parties and the subject-matter of the controversy, have all been decided against them. State v. Post (Tex. Civ. App.) 169 S. W. 401, and the same case by the Supreme Court in 169 S. W. 407; Brooks et al. v. Slaughter (Tex. Civ. App.) 218 S. W. 632, supra; Brooks et al. v. Slaughter (Tex. Civ. App.) 232 S. W. 856, supra; Slaughter v. Crosby et al. (Tex. Civ. App.) 289 S. W. 1060, supra.

The judgment of the trial court is reversed, and the cause remanded for the errors discussed, and the trial court directed to follow the instructions of Judge Boyce in 218 S. W. and 232 S. W., supra, in determining the true location of the boundaries in controversy.


author: CONNER, C. J.

text:
    GAUSE-WARE FUNERAL HOME v. McGINLEY.
    No. 12458.
    Court of Civil Appeals of Texas. Fort Worth.
    May 9, 1931.
    Rehearing Denied June 27, 1931.
    See, also, 21 S.W.(2d) 347.
    Chas. T. Rowland and P. Walter Brown, both of Port Worth, for appellants.
    McLean, Scott & Sayers, of Port Worth, for appellee.
   CONNER, C. J.

J. M. McGinley, on July 16, 1927, filed suit against the Gause-Ware Puneral Home, a copartnership composed of George L. Gause and J. M. Ware, alleging, in substance, that on Pebruary 15,1927, he drove his Pord coupé from the east into the intersection of Throck-morton and West Third streets in the city of Port Worth, with the intention of turning-south on Throckmorton street, and, after passing the center of Throckmorton street, he held out his left hand to indicate that he was turning south, and just about the time the movement to turn was completed an ambulance owned by Gause-Ware Funeral Home, driven by an agent of said home by the name of Martin, drove said ambulance against his coupé, and that he received severe and permanent injuries as a result of the collision of said two vehicles; that he was driving his car at a very slow rate of speed, but that the ambulance 'was being driven in a reckless manner at a high and dangerous rate of speed; that Throckmorton street runs north and south and West Third street runs east and west; that he was free from negligence, but that the defendants and their agent and employee in charge of the ambulance were guilty of negligence in the particulars hereinafter enumerated, which was the proximate cause of his injuries received as the result of the impact of the two cars, to wit:

“(a) In operating said ambulance at said time and place at a greater rate of speed than 12 miles per hour and in violation of said section 57, title 7, Revised City Ordinances aforementioned.
■ “(b) In operating said ambulance upon a public street within the corporate limits of the Gity of Port Worth at a greater rate of speed than 20 miles per hour in violation of positive law of the State of Texas.
“(c) Ini operating said ambulance at such rate of speed upon said street as to endanger the life and limb of plaintiff and the safety of his property in violation of positive law of the State of Texas.
• “(d) In failing to slow down the speed of said ambulance to 15 miles per hour in attempting to pass plaintiff’s automobile upon said street, all in violation of the laws of the State of Texas.
“(e) In operating said ambulance at the rate of speed at which it was traveling at said time and place in view of the conditions and circumstances existing thereat. And in operating said commercial vehicle on said public street at a greater rate of speed than 15 miles per hour in violation of state law.
“(f) In failing to sound the horn of said ambulance, or otherwise notify plaintiff of its approach and close proximity in time to have permitted plaintiff to have sought a place of safety.
“Each and all of which said acts, jointly and severally, were the direct and proximate cause of said injuries and damage as aforesaid.”

, Defendants urged exceptions, and, in addition to a general denial, alleged that under the laws of the state and the ordinances of the city of Fort Worth the ambulance had the right of way in the intersection of said Throckmorton and West Third streets, and that plaintiff failed to yield said right of way to said ambulance, but negligently drove his car into the intersection of said streets in defiance of said laws and ordinances, negligently turned his car in a southerly direction without giving a signal plainly visible or audible to the driver of the ambulance indicating that he was going to turn, and that said negligence of plaintiff was a proximate contributing cause of the injuries which he received as a result of the collision of said two vehicles.

The case was tried before a jury on special issues, and resulted in a verdict and judgment for plaintiff, from which judgment this appeal has been prosecuted.

The plaintiff alleged that “defendants had placed in charge of said motor vehicle, as their agent and employee, a man by the name of Martin, and while the said Martin was driving and operating said ambulance at a high and dangerous rate of speed,” etc., a collision was brought about. The defend-, ants not only presented a general demurrer, but also specially excepted to the sufficiency of the petition on the ground that it was not alleged that Martin was “at the time and place in performance of some business of the defendants.”

The court overruled the special exception, and error has been assigned to the ruling. We think this assignment must be sustained. Facts not alleged, though proven, will not support a judgment. See Hall v. Jackson, 3 Tex. 305. It was certainly necessary to prove that Martin was at the particular time of the collision engaged in the performance of his employer’s business. See I. & G. N. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; G., H. & S. A. Ry. Co. v. Currie, 100 Tex. 136, 96 S. W. 1073, 10 L. R. A. (N. S.) 367; Hill v. Staats (Tex. Civ. App.) 187 S. W. 1039; Van Cleave v. Walker (Tex. Civ. App.) 210 S. W. 767; Miller v. Pettigrew (Tex. Civ. App.) 10 S. W.(2d) 168; Rew v. Stoddard (Tex. Civ. App.) 225 S. W. 836; Cole v. Wright (Tex. Civ. App.) 18 S.W.(2d) 242; Langford v. El Paso Baking Co. (Tex. Civ. App.) 1 S.W.(2d) 476.

In the case of Hill v. Staats, supra, the defendant’s chauffeur, after having been placed in charge of the automobile, drove the defendant’s wife and children to a circus, after which, and pending the performance, he drove away on a mission of his own and ran down the plaintiff. It was held that the defendant was not liable, since at the particular time he was acting outside the scope of his employment. The other cited cases will as clearly show the insufficiency of the allegations.

While the witness Scott Martin, the driver of the ambulance, was testifying, he was asked that if on the day following the accident' Homer Bellew did not ask him, “How in the world did you happen to hit McGinley?” and that if he (Martin) in that conversation did not reply, “I declare I don’t know. I was driving down the street and the first thing I knew I was1 right on him.” Martin denied having made the statement to Bellew as imputed, and Bellew was later permitted to testify that he did. The testimony was objected to as hearsay, but the court ruled it to be adnlissible in the way of impeachment of the witness. Our only reason for mentioning the subject thus presented is to call attention to the insufficiency of the bill of exception taken to the action of the court. It is evident that the statement of the witness Bellew contradicting Martin was hearsay and not admissible except as tending to impeach Martin, and whether or not it did so can only be determined by a consideration of what, if anything, the witness Martin had previously testified, and the bill of exception neither on its face nor by a reference to tlie statement of facts shows that Martin had at any time given testimony contradicting, or tending to contradict, his imputed statement to Bellew. See Morgan v. Stringer (Tex. Com. App.) 36 S.W.(2d) 468, 469.

Article 2237 of the Statutes prescribes the requisites of a hill of exception, and, while no particular form of words are required, it does declare that: “The objection to the ruling or action of the court shall be stated with such circumstances, or so much of the evidence as may be necessary to explain, and no more, and the whole as briefly as possible.”

Article 2237 further provides that, where the statement of facts contains all the evidence requisite to explain the bill of exception, evidence need not be set out in the bill, but it shall be sufficient to refer to the same as it appears in the statement of facts. See opinion of this court on motion for rehearing in the case of Russell Morgan v. John Maunders, 37 S.W.(2d) 791, for a full expression of our views on this subject. However, as related to the subject we have been discussing, we think the court erred in failing to give to the jury, as defendants specially requested, an instruction that the testimony last above mentioned could only be for the sole purpose of impeachment. It is true the record discloses that the court verbally so instructed the jury at the time of the admission of the testimony, but article 2184, Rev. Statutes, provides that: “Unless- expressly waived by the parties, the judge shall prepare and in open court deliver a written charge to the jury on the law of the case. * * * ”

It is easily conceivable that during the course of the trial a verbal instruction of the character stated would be wholly overlooked and forgotten by a jury in the consideration of a case, and the defendants’ instruction, having been in writing, should have been given. Sharman v. Newsome & Johnston, 46 Tex. Civ. App. 111, 101 S. W. 1020; Dalton v. Dalton (Tex. Civ. App.) 143 S. W. 241.

The case was submitted to a jury upon special issues, and the court, after giving definitions of the terms “negligence,” “ordinary care,” “proximate cause,” and “unavoidable accident,” further charged:

“The statutes of the State of Texas provide: (1) Every person operating a motor vehicle shall sound a bell, gong, horn, whistle or other device on said vehicle whenever necessary as a warning of danger. (2) Vehicles overtaking other vehicles, proceeding in the same direction shall pass to the left thereof, and shall not again drive to the right until the road is reasonably clear of such overtaken vehicle. (3) Except where controlled by local ordinances or regulations as are permitted under the law, the operator of a vehicle approaching an intersection on the public highway shall yield the right-of-way to a vehicle approaching such intersection from the right of such first named vehicle. (4) All vehicles approaching an intersection of a public highway with the intention of turning thereat, shall, in turning to the left, run beyond the center of such intersection before turning such vehicle to the left. (5) A person in charge of any vehicle upon 'any highway, before turning or changing the course of such vehicle, shall see first that there is sufficient space for such movement to be made in safety, and if the movement or operation of other vehicles may reasonably be affected by such turning or changing of course, shall give plainly visible or audible signal to the person operating such vehicle of his intention to so turn or change said course.
“The ordinances of the City of Fort Worth provide that all vehicles and street cars going in a northerly or southerly direction shall have the right of way over all vehicles going in an easterly or westerly direction.”

The defendants in due time and order excepted to the charge as being in the nature of a general one which should not have been given, inasmuch as the case was being submitted on special issues. We think the court erred, as assigned, in giving the charge quoted. In passing upon a similar charge, our Supreme Court, in the case of Radford Grocery Co. v. Andrews (Tex. Com. App.) 15 S.W.(2d) 218, 219, speaking through Justice Critz, said: “We are of the opinion that the charge is a general charge, and as such is clearly in violation of article 2189, R. C. S. 1925, which provides that when a case is submitted on special' issues, the court shall submit only ‘such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.’ The court in his main charge had already defined negligence, and ordinary care in the usual manner, and an additional charge like the one above which in general terms tells the jury the duties of persons using the streets is certainly giving a general charge.”

See, also, H. & T. C. Ry. Co. v. Stribling (Tex. Civ. App.) 293 S. W. 890; T. & N. O. Ry. Co. v. Harrington (Tex. Com. App.) 235 S. W. 188; Chicago, R. I. & G. Ry. Co. v. Abdou (Tex. Civ. App.) 1 S.W.(2d) 493.

We also question the explanatory charge given, in connection with special issue No. 1, and the court’s failure to define the terms “yield the right of way” and “keep a lookout,” but do not think it necessary to particularly discuss the assignments relating to these matters in view of the criticisms made and the probability that they will not occur or be avoided on another trial. For the errors discussed, it is ordered that the judgment below be reversed and the cause remanded.