Dallas Railway & Terminal Co. v. McAdams , 226 S.W.2d 194 ( 1949 )

CRAMER, Justice.

Frank McAdams filed this suit March 8, 1945 for damages growing out of an accident to his then wife,-Jodie McAdams, alleging that she was injured by the rear door of one of appellant’s street cars on October 28, 1944. •

On April 17, 1946 Jodie McAdams made a motion for permission to prosecute the suit in her own name; 'that her name be substituted in place of that of Frank Mc-Adams ; setting up as reason therefor that her husband had deserted her and refused to prosecute the suit either in his own name or jointly with her. .Her motion was granted April 17, 1946. Upon the trial, which began January 24, 1949, it was undisputed that appellant and her former husband, Frank, had been divorced about a year prior thereto. The verdict for personal injuries, pain, suffering, etc., was for $1,350. Thereafter, before judgment, appellant made a motion to apportion the $1,350 between appellee and Frank, who was not then a party to the suit. The motion was overruled and judgment rendered for appellee for $1,350 on April 9, 1949.

Appellant, --among other assignments in its motion for new trial, complains of the error “in rendering judgment for Jodie McAdams for $1,350 and in overruling defendant’s motion in which it asked the court, in -the alternative, to render judgment for Jodie McAdams for only one-half of the damages found by the jury, to wit $675.00.” .

On- this : appeal .the only assignments briefed- are- as to the amount of the judgment in excess of $675. ■

Appellant relies on the case of Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102, by the Supreme Court.' In that -case the defendant in error and her' former husband were divorced prior to the time she filed suit; The community status ■ had, therefore, been dissolved before the' filing of the suit and she and her former husband were, prior to the filing of the suit, tenants in common of the cause of action sued ■on. She therefore, could not sue in her name for that which she did not. own, but was owned by her-former husband, without her -former husband being a party to the •suit. The only distinction between that case and the one -here is that the parties here were still married at time suit was filed; the wife later being. substituted as the sole party-plaintiffs; then, later, divorced; all prior to the trial on the merits. Under these facts, appellee, during the marriage to Frank McAdams, maintained this cause of action for the community. But after -the divorce, Jodie and Frank became tenants in common in the cause of action, and since one tenant in common is not entitled to recover for another tenant in common, without such other tenant in common being a party to the suit, Jodie, at the time of the trial, could maintain the suit and recover only for her interest in the cause' of action, to wit: one-half of same, Taylor v. Catalon, supra.

Appellee, however, now contends that notwithstanding the record at the close of the evidence and at the time the jury was discharged, that she actually owned, by assignment, - her former husband’s one-half interest. Evidence to that effect was'introduced on the hearing of the motion to apportion, — over appellant’s objection. After the objection was overruled, appellant introduced evidence raising a question of fact on the assignment.

Appellant asserts by its last point that the portion of the judgment rendered on evidence introduced over its objection, after verdict and at the time the motion for judgment was heard, is error.

Rule 270, Texas Rules of Civil Procedure, provides as follows: “At any time the court may permit additional evidence to be offered where it clearly appears to be necessary to the due administration of justice. Provided in a jury case no evidence on a controversial matter shall be received after the verdict of the jury.”

The evidence on the assignment, being controverted, was improperly admitted after the jury had been discharged under this rule.

Under the holding by the Supreme Court in Taylor v. Catalon, supra, the judgment below should therefore be, and it is, here reformed so as to award appellee the sum of $675 plus costs in the trial court up to and including the entry of the judgment.

Reformed and affirmed.

BOND, C. J., dissents.