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N. Tex. Traction Co. v. Hill - 297 S.W. 778 (Tex. Civ. App. 1927)

Rule:

Tex. Const. art. 16, § 15 provides: All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property. But, the legislature could not divest the husband of all interest in and to property which, under the Texas Constitution, was guaranteed either to the community or to the husband's separate estate and use the same to enlarge the wife's separate estate beyond its constitutional limits.

Facts:

Oct. 24, 1923 plaintiff Nettie Hill was riding as a passenger in an automobile driven by her former husband, T.A. Lambert, when a railcar owned and operated by defendant Northern Texas Traction Co. ("NTT") collided with the automobile at a railcar crossing. As a result of the collision Hill suffered injuries. Hill filed a lawsuit against NTT in Texas state court. At first, Hill's former husband was a named plaintiff, but as the parties had divorced after suit was fled, Hill filed an amended petition indicating the divorce and the fact that she had married R.H. Hill, who was joined as plaintiff in the lawsuit. The complaint alleged that NTT was guilty of negligence per se in that it had failed to keep the crossing in the condition required by the ordinances of the City of Dallas; that the motorman failed and neglected to warn Hill as the ordinances required; and that the motorman failed to keep a proper lookout for vehicles approaching the crossing where the accident occurred. After a trial, the jury rendered a verdict for Hill and awarded her $ 7,500 in damages. The trial court entered judgment on the verdict, and NTT appealed.

Issue:

Did the trial court err when it entered a verdict for Hill?

Answer:

Yes.

Conclusion:

The Court of Appeals of Texas reversed and remanded the trial court's judgment. The court held that the ex-husband was a necessary party plaintiff in the action. The cause of action was community property in which the ex-husband had a one-half interest. The ex-husband's negligence, if any, would then be a defense to the action because otherwise the ex-husband would be allowed to recover regardless of his own negligence. Any jury charge on discovered peril was required to conform with the provision that it only defeated the defense of contributory negligence where the danger was imminent, was actually discovered, and could have been arrested.

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