The opinion of the majority of the Court of Civil Appeals and the dissenting opinion of Mr. Justice Dunklin will be reported along with this and will show the nature of the case and of the question which controls its decision. It is unnecessary for us to say more than that we agree with the dissenting opinion which we regard as correctly stating the law. This conclusion leads to a reversal of the judgment in favor of Mrs. Robertson and a rendition of judgment that she take nothing.
In an argument in this court the point is made by the plaintiff in error that the judgment in favor of Annie Robertson is fundamentally erroneous because her mother, who is among those to whom the cause of action which accrued to the deceased is made to survive, is not a party to the suit. This is not made one of the grounds in the application for the writ of error, to which this court is confined Scalfi v. The State, 96 Tex. 559.
Reversed and rendered as to Mrs. Maggie M. Robertson; Affirmed as to Annie Robertson.
MR. JUSTICE SPEER, with whom concurred MR. CHIEF JUSTICE CONNER, delivered the opinion of the Court of Civil Appeals.
Maggie M. Robertson instituted this suit in behalf of herself, as surviving widow of John P. Robertson, deceased, and as next friend for Annie Robertson, a surviving child of the said John P. Robertson, to recover damages for injuries received by the said John P. Robertson through the negligence of the Fort Worth Rio Grande Railway Company, which injuries did not result in his death. There was a verdict and a judgment in favor of the plaintiffs for the sum of twenty-five hundred dollars each, from which the defendant has appealed, complaining only of that portion of the judgment in favor of Maggie M. Robertson.
There is practically no controversy in the facts of this case, and the issue presented is purely one of law. Maggie M. Robertson, while quite a young girl, was married to the deceased, John P. Robertson, observing all the solemnities of law, and the two continued to live together as husband and wife until the date of his death, more than ten years thereafter. At the time of the attempted marriage John P. Robertson had a living wife from whom he had never been divorced, but of the existence of this marriage appellee was ignorant. At the time of her marriage and at all times until the truth was disclosed on the trial of this case she had no reason to believe that her marriage was not in all respects lawful, but on the contrary firmly believed that the same was regular. There is evidence to indicate that the deceased also entered into the marriage with appellee in good faith, but as to this we express no opinion, since it is unimportant in the view we take of the case.
John P. Robertson during his life instituted suit against appellant to recover for the injuries sustained by him, but died before the cause proceeded to judgment.
The issue of law presented is very clearly stated in appellant's propositions, as follows: "First. Maggie M. Robertson, not being the lawful wife of John P. Robertson, deceased, had no interest in an action by him for injuries done to his person, and such action being brought by him in his lifetime did not survive at his death to plaintiff, Maggie M. Robertson, but only survived to his heirs and legal representatives. Second. Plaintiff, Maggie M. Robertson, was the putative and not the lawful wife of John P. Robertson, deceased, and as such had no interest in a cause of action which abated at his death except as to his heirs and legal representatives, but only had an interest in such property as they by their joint efforts may have acquired during the unlawful cohabitation, and the action brought by deceased in April, 1907, having been abandoned, plaintiff, Maggie M. Robertson, had no such interest in said cause of action as would authorize her to maintain this suit."
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The opinion of the majority of the Court of Civil Appeals and the dissenting opinion of Mr. Justice Dunklin will be reported along with this and will show the nature of the case and of the question which controls its decision. It is unnecessary for us to say more than that we agree with the dissenting opinion which we regard as correctly stating the law. This conclusion leads to a reversal of the judgment in favor of Mrs. Robertson and a rendition of judgment that she take nothing.
In an argument in this court the point is made by the plaintiff in error that the judgment in favor of Annie Robertson is fundamentally erroneous because her mother, who is among those to whom the cause of action which accrued to the deceased is made to survive, is not a party to the suit. This is not made one of the grounds in the application for the writ of error, to which this court is confined Scalfi v. The State, 96 Tex. 559.
Reversed and rendered as to Mrs. Maggie M. Robertson; Affirmed as to Annie Robertson.
MR. JUSTICE SPEER, with whom concurred MR. CHIEF JUSTICE CONNER, delivered the opinion of the Court of Civil Appeals.
Maggie M. Robertson instituted this suit in behalf of herself, as surviving widow of John P. Robertson, deceased, and as next friend for Annie Robertson, a surviving child of the said John P. Robertson, to recover damages for injuries received by the said John P. Robertson through the negligence of the Fort Worth Rio Grande Railway Company, which injuries did not result in his death. There was a verdict and a judgment in favor of the plaintiffs for the sum of twenty-five hundred dollars each, from which the defendant has appealed, complaining only of that portion of the judgment in favor of Maggie M. Robertson.
There is practically no controversy in the facts of this case, and the issue presented is purely one of law. Maggie M. Robertson, while quite a young girl, was married to the deceased, John P. Robertson, observing all the solemnities of law, and the two continued to live together as husband and wife until the date of his death, more than ten years thereafter. At the time of the attempted marriage John P. Robertson had a living wife from whom he had never been divorced, but of the existence of this marriage appellee was ignorant. At the time of her marriage and at all times until the truth was disclosed on the trial of this case she had no reason to believe that her marriage was not in all respects lawful, but on the contrary firmly believed that the same was regular. There is evidence to indicate that the deceased also entered into the marriage with appellee in good faith, but as to this we express no opinion, since it is unimportant in the view we take of the case.
John P. Robertson during his life instituted suit against appellant to recover for the injuries sustained by him, but died before the cause proceeded to judgment.
The issue of law presented is very clearly stated in appellant's propositions, as follows: "First. Maggie M. Robertson, not being the lawful wife of John P. Robertson, deceased, had no interest in an action by him for injuries done to his person, and such action being brought by him in his lifetime did not survive at his death to plaintiff, Maggie M. Robertson, but only survived to his heirs and legal representatives. Second. Plaintiff, Maggie M. Robertson, was the putative and not the lawful wife of John P. Robertson, deceased, and as such had no interest in a cause of action which abated at his death except as to his heirs and legal representatives, but only had an interest in such property as they by their joint efforts may have acquired during the unlawful cohabitation, and the action brought by deceased in April, 1907, having been abandoned, plaintiff, Maggie M. Robertson, had no such interest in said cause of action as would authorize her to maintain this suit."
It will thus be seen that two questions of law are involved: First, whether or not Maggie M. Robertson, as the putative wife of John P. Robertson, deceased, had an interest in her own right in the cause of action against appellant for personal injuries not resulting in the death of John P. Robertson; and, second, if not, then is the said Maggie M. Robertson an heir or legal representative within the meaning of our statute surviving such causes of action? It would be unprofitable to review the many authorities and to rehearse
the arguments leading up to the conclusion so clearly announced in Barkley v. Dumke, 99 Tex. 150, wherein Mr. Chief Justice Gaines uses the following language: "Therefore, we think it should be taken as the settled doctrine in this State that in case of a marriage of the character of that in controversy, the putative wife, so long as she acts innocently, has, as to the property acquired during that time, the rights of a lawful wife." See also Allen v. Allen, 105 S.W. Rep., 53; Speer on the Law of Married Women, sec. 178. In the Supreme Court case from which the above quotation is taken it is very clearly pointed out that the rule of the common law with respect to such marriages does not obtain in this State and the earlier cases of Morgan v. Morgan,21 S.W. 154, and Lawson v. Lawson, 30 Texas Civ. App. 43[30 Tex. Civ. App. 43], wherein the Courts of Civil Appeals had recognized the property rights of the putative wife, were expressly approved. Appellee then having married John P. Robertson in good faith, is undoubtedly entitled to the rights of a lawful wife in the property acquired by them, or either of them, during their marriage. It is equally well settled that a chose in action accruing to either spouse during the marriage by reason of an injury to the person is community property. Ezell v. Dodson, 60 Tex. 331; Texas C. Ry. Co. v. Burnett, 61 Tex. 638; Speer on the Law of Married Women, sec. 193. So it necessarily follows, we think, that appellee was an equal owner with her husband in the cause of action against appellant, and was only precluded from suing for the same prior to his death by reason of the rule of law in this State that such causes of action may be maintained only by the husband. Upon his death the impediment was removed, and she, like any other litigant, might properly assert her legal rights, irrespective, we think, of any statute surviving the cause of action as to the heirs and legal representatives of the deceased husband. In other words, the chose in action, being property, was acquired by John P. and Maggie M. Robertson during the time they were living together as husband and wife, and as such, belonged jointly to them, and after his death she, as such owner, was authorized to maintain a suit for its recovery precisely as the surviving wife of a perfectly regular marriage might sue to recover the community property. We furthermore think this conclusion should be wholly uninfluenced by any consideration of the question whether or not appellee actually contributed anything toward the acquisition of this cause of action. If the marriage between appellee and John P. Robertson had been regular, undoubtedly then the law would not inquire whether the wife's efforts had entered into the acquisition or not. If the logic of the decisions already referred to is sound, and we think it is, the law will not inquire in the present case whether the acquisition was by the joint efforts of the husband and wife, or attempt to adjust their respective rights in proportion to the amount each contributed thereto. The law will not concern itself with such an inquiry, but will leave the parties to share in the property in the same proportion as though the marriage contract was that the wife had every reason to believe it to be, that is, a valid marriage. To accord to appellee a right to share in the acquisitions of herself and John P.
Robertson only in the proportion in which her earnings or efforts entered into the acquisition would be to accord her the rights of a stranger, and not of a wife at all. Such a conclusion would be at variance with the whole theory upon which the decision of Barkley v. Dumke and the line of cases therein reviewed is based.
We would further hold, if it were necessary to a disposition of the case, that the cause of action survived to appellee under article 3353a, of Sayles' Texas Civil Statutes. That article provides: "Causes of action upon which suit has been or may hereafter be brought by the injured party for personal injuries other than those resulting in death, whether such injuries be to the health or to the reputation or to the person of the injured party, shall not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued; but in the case of the death of either, or both, such cause of action shall survive to and in favor of the heirs and legal representatives of such injured party, and against the person, receiver or corporation liable for such injuries and his legal representatives; and so surviving, such cause may be hereafter prosecuted in like manner and with like legal effect as would a cause of action for injuries to personal property." We think the evident purpose of the Legislature was to abolish the common law rule that a cause of action for personal injuries not resulting in death should abate upon the death of either party, and that a liberal interpretation of this remedial statute would include the appellee within the scope of the terms "heirs and legal representatives."
The injuries out of which this suit arose were inflicted March 28, 1906. The deceased instituted suit on April 4, 1907, and died in August of that year. That suit was abandoned after his death and this suit instituted in September, 1907. On June 11, 1908, appellee, learning on that day for the first time of the existence of the other living wife, filed her trial amendment asserting her rights as a putative wife. Under these circumstances the appellant's plea of two years limitation was properly overruled.
We find no error in the judgment and it is affirmed.
Decided April 17, 1909.