Tex. & Pac. R'y Co. v. Gwaltney

2 Wilson 602

• Court: Court of Appeals of Texas
• Decided: May 9, 1885
• Docket: No. 3309
• Status: Published

Opinion

Opinion by

White, P. J.

§ 684. Husband and wife may join in suit for damages for personal injuries; case stated. On September 8, 1884, John Gwaltney brought this suit to recover of appellant damages for alleged personal injuries inflicted upon him and his wife while traveling as passengers on appellant’s road on the 16th day of September, 1883. On December 3, 1884, he amended his petition by making his wife a party plaintiff in the suit. Appellant pleaded in abatement that the wife was improperly joined as plaintiff. Also, that the joinder of the wife was the setting up of a new cause of action, and to this new cause of action the statute of limitation of one year was pleaded. Ver•dict and judgment were rendered for appellees for $100 ■damages. Held: Appellant’s plea in abatement was based upon the rule announced in R. R. Co. v. Burnett et ux. 61 Tex. 638, in which it was held to be reversible ■error to overrule a special exception to the joinder of the wife in an action for personal injury done her during marriage, she not being either a necessary or a proper party. [Ante, § 181.] That case has been greatly modified, if not practically overruled, by the recent decision of our supreme court in the case of the San Antonio .Street R’y Co. v. Helm and wife, decided May 8, 1885, in which it is held that it is only in rare, exceptional cases that the joinder of the wife in such causes of action would be such error as that the overruling of a special ■exception, based on that ground, would cause a reversal of the judgment. This case is not of that exceptional ■character, and the plea in abatement was not maintain.able.

May 9, 1885.

§ 6'85. Limitation; statute of, does not bar a married woman. If the amended petition set up a new cause of action, which is not conceded, the statute of limitation of one year [R. S. art. 3202], pleaded thereto, could not .avail appellant, because pleaded against a married woman. The provision of the statute of limitation excepting married women from the operation thereof, during the disability of marriage, applies in this case, as in other cases .arising under the statute.

Affirmed.