Texas & Pacific Railway Co. v. Bailey

The question determined in the Texas Pacific Railway Company v. Johnson, 76 Tex. 425, as to the liability of the railway for injuries inflicted while the road was in the hands of the receiver, is again presented for our consideration by the appellant. We see no reason why the decision in that case should not be adhered to. But the further question is raised, that if the claims against the company for the acts of the receiver while the road was in his charge should exceed the value of the improvements or betterments of the property made by him out of the earnings coming into his hands, then the company should not be liable. This defense was not raised by the pleading, and the charge requested by the appellant embodying the same was properly refused. If there were any equities in favor of the company growing out of the fact that the liabilities of the receiver for unadjusted claims exceeded the amount expended in betterments, they should have been pleaded. The defendant answered only by plea denying its liability for acts of the receiver generally, general denial, and contributory negligence. Nor do we think that pending and undetermined suits for unliquidated demands should be computed as claims for which the receiver was liable if such inquiry should be gone into upon proper pleadings.

After the plaintiff F.J. Bailey became insane, his wife Annie Bailey was permitted by the court to intervene and make herself a party plaintiff and prosecute the suit to judgment in her own behalf. It was alleged and shown that the injuries sustained by her husband were inflicted during their marriage. This action of the court has been assigned as error.

The damages recoverable for the injury to the husband were the common property of the husband and wife, and could be disposed of by him only; and the entire control and disposition of the community property is with the husband, except in certain instances well established by the decisions of the Supreme Court, as where he voluntarily abandons the wife, and of his prolonged absence. An insane person is not civilly dead. Civil death is that change in a person's legal and civil condition which deprives him of civic rights and judicial capacities and qualifications, as natural death extinguishes his natural condition. In English law it followed as a consequence of being attainted of treason or felony, and anciently by entering a monastery or abjuring the realm. Black's Law Dic., "Civil Death;" 3 Am. and Eng. Encyc. of Law, 273. Our statutes provide for the appointment of a guardian of an insane person and for the administration of his estate pending his insanity, and he must be represented by a guardian in all transactions concerning his estate. As the husband is entitled to the possession, control, and sole disposition of the common property of himself and wife, it is necessary that suits for the recovery of such property should be conducted by him and judgment had in his name; and in case of his insanity such suits must in conformity with the law be prosecuted in the name of his guardian. In case of the death of the husband, the wife, as the marital partner, may administer the community estate subject to the laws relating to the administration of estates; and it has been held that under some circumstances she may maintain in her own name a suit for the recovery of the community property. Walker v. Abercrombie,61 Tex. 69. When she has been abandoned by her husband her right to sell the community property has been often recognized by our Supreme Court. But in the case of the insanity of the husband the law points out the method in which he shall be represented, and that is by a guardian appointed by the County Court.

In the case of Heidenheimer v. Thomas, 63 Tex. 290, the husband while insane, joined by his wife, executed a deed by which certain real estate was attempted to be conveyed to the appellant Heidenheimer. It was contended that although Thomas, the husband, was insane when the deed was made, yet the wife having joined in the execution it was valid as a conveyance of the property. Judge Stayton, in delivering the opinion of the court, said: "We are of the opinion that no such power rests in the wife of an insane person, at least in reference to community property or the separate property of the husband. The law provides for just such a case, and renders unnecessary the exercise of any such power by the wife."

Of Forbes v. Moore, 32 Tex. 195, which is relied on by counsel for appellee, the court in Heidenheimer v. Thomas, supra, said: "It seems to have been held that during the insanity of a husband the wife might dispose of so much of the common property, or in case there be none, of so much of the separate property of the husband, as might be necessary to supply the wants of herself and their children. It does not appear in that case that the wife had disposed of any property, and the remarks made in the course of the opinion, so far as we can see from the report of the case, were not necessary to the decision of the cause."

And upon an examination of the case of Jacobs v. Cunningham,32 Tex. 774, also cited by the appellee, it appears that the note sued on in that case was the separate property of Mrs. Cunningham, and that the suit was maintained under article 4636, Paschal's Digest. Rev. Stats., art. 1204.

There is no authority for the prosecution of the suit by the wife of the original plaintiff and the recovery of the judgment in her name. The argument of analogy to the law of partnership to which our system of community marital rights is compared falls in the presence of the statute providing for the appointment of a guardian in such case; and the reason for the exceptions read into the law in case of abandonment by the husband arises from the necessity of the case, there being no statute to meet it. It is said by counsel that Mrs. Bailey could maintain the action as next friend of the plaintiff; but the reply to this is that she did not do so. The court permitted her to prosecute the suit in her own name and in her own name to recover judgment against the defendant, and awarded her execution.

There was no error in refusing the special charges requested by the appellant, and complained of in his fourth and fifth assignments of error. There was testimony that Bailey could not see the train on account of some box cars that were standing on one of the tracks next to him, and that he was signaled to come across by a switchman. The jury had been already fully instructed by the court as to the relative duties of Bailey and the appellant at the crossing.

It appeared from the evidence that the engine was switching cars to and fro across the crossing, and went to the west of it to a distance of less than eighty rods, and on its return struck the wagon which Bailey was in. The court instructed the jury that it was the duty of the company's servants to ring the bell or blow the whistle eighty rods before coming to the crossing, which is complained of as error by the appellant, because the engine had not gone to that distance from the crossing. But the jury were also instructed that if the distance to which the engine went past the crossing was less than eighty rods east or west thereof, it was the duty of the servant in charge of the train to ring the bell or blow the whistle at any time the engine or cars were within eighty rods of the crossing. This charge was correct, and that complained of could in nowise have misled the jury or injured the appellant.

As the judgment of the court below must be reversed for the error indicated, we will not inquire whether or not the verdict of the jury was excessive in amount.

For the error of the court in permitting the suit to be prosecuted by the wife of the plaintiff during his insanity, the judgment should be reversed and the cause should be remanded, in order that proper parties may be made.

Reversed and remanded.

Adopted January 19, 1892.