*1 fol- objectionable on the and held courts appeal a direct
lowing grounds: It is (1) prejudice of self-interest and get it attempt is an
jury, case in the align itself City and to hold the side of the whatever
award down because end jurors
judgment is rendered the themselves money. help pay with their tax
will have to State, West Tex.Civ.App.,
(Eastland
hist.). City’s point 24 is overruled. judgment.
We affirm the court’s FIRE INSURANCE CHARTER OAK COMPANY, Appellant, vir, Appellees. Frances FEW et
No. 484. Appeals
Court of Civil Tyler. 1970.
Rehearing Denied June *2 Flock,
Ramey, Brelsford, Devereux & Hutchins, Carroll, Donald Hatch- Mike A. ell, Tyler, appellant. Smith, McDowell, Howard S. Johnson McDowell,
Smith, Sulphur William Springs, appellees.
DUNAGAN, Chief Justice. Few, plaintiff1, Francis husband, pro only her joined Few, brought this suit to recover Milburn total, permanent workmen’s they appeared designated convenience, the trial court. For will brought suit, allegedly plaintiff result benefits due as the she When her joined husband as formal sustained her for- during scope employ- portion origi- ma of her course and petition nal Safeway ment Min- which reads: Grocery at the Store eóla, Texas. The case was tried to a *3 Mary Few, joined Frances “Come now plaintiff, Mary that Frances found husband, pro herein Mil- forma Few, injury in the sustained accidental Few, plaintiffs, hereinafter called burn scope employment; course and of her of The Fire complaining Charter Oak be- disability such resulted in total herein, Company, defendant 20, 1968; ginning and that total such jury the court and and would show unto disability permanent. jury The fur- was * * following: (Emphasis the failed, ther that defendant refused found ours.) neglected plaintiff rea- to furnish all within a reason- petition sonable medical services original also states The “ * * * injury; able time after notice of and that specifically otherwise Unless for compensate plaintiff would stated, has reference ‘plaintiff’, $808.00 the word medical she throughout services which contracted these Mary Few Frances failure, her own after said refusal or ne- makes it clear pleadings”, which glect. nor recov- stated cause of action was ery by or Few. Plaintiff’s sought for Mr. The judgment trial court entered on the supplemented, petition later original was Mary above verdict for both Frances Few pro Few as a again Milburn designating husband, Few, (and Milburn their at- petitions these party. Neither of forma torneys) lump $10,492.67plus in the sum of was original supplemental) nor the (the for medical services and interest $808.00 Few’s change Milburn ever amended from date judgment. the forma pro a that of status from throughout singular in the points Defendant’s five error raise “Plaintiff” is plural issues, is the en- no where propriety pleadings two the the (1) to-wit: including pleadings the tering judgment “plaintiffs” for used in sign not indispensable did prayer. absent the Mr. Few of one in this cause. party pleadings member a real on file as le- litigation, at interest However, judgment rendered gal support sufficiency of the evidence recovery case awarded failed, finding jury’s that defendant alone Few Frances benefits not neglected or plaintiff refused to furnish her husband as but to both her and required by medical Article services as being “plaintiffs” equal right, plural Sec. Vernon’s Tex.Civ.St. portions of the throughout all decretal used defendant From judgment. this points The the com- challenge do not appealed. has pensability plaintiff’s injury or the du- disability. find- jury’s ration of her The and before After verdict ings regard in that conceded are for motion rendered, written defendant purpose Consequently, appeal. Milburn complained the trial court there sum- is no need us discuss or pro party the ac- only a Few was forma surrounding marize facts accident to judgment entitled tion and testimony plain- regarding or the medical ju- therein and that the court was without injury. tiff’s Mrs. grant judgment to him. risdiction to pleadings and plaintiff to Milburn did not amend her was married trial, litigation into bring Few at the time of on the date her husband accident, again raised party and had been so for 28 real in interest. married a new complaint in its years prior thereto. same motion trial, being both motions overruled Affirmative relief cannot be granted court. pro who one stands forma
capacity,
County,
Lucas v. Dallas
138 S.
Dallas,
W.2d
joined in
party to a lawsuit
A
h.);
Campbell, supra,
w.
Perkins v.
only is considered to
pro
capacity
forma
a pro
forma
remains as
until
only,
usually
of form
as a matter
joined
his
changed affirmatively.
status
pleading
satisfy
requirement
some
Jones, supra.
Brown v.
Baggage
procedure. See Yellow Cab
(Tex.
Smith,
Co. v.
A husband who
joined by
has been
Dixie Motor
dism.);
Civ.App.,
plaintiff
his wife as a
Watson,
Corporation v.
Coach
*4
suit to
recover
property is a
writ) ; 44
1940, no
314,
(Tex.Civ.App.,
315
party who
subject
has
in
interest
127,
party
proA
forma
T.J.2d, p.
sec. 2.
matter of
recovery,
the lawsuit and the
in
party
real
at interest
become a
does not
sought but he
party
is not a real
in interest
no
he is deemed
have
litigation
in
litigation,
only
he is
a nominal or
subject
matter
interest
recoverable
party
formal
any right
without
to control
Taliaferro, 119 S.
of the suit. Rhodes v.
as
as
of the suit well
or direct
course
Worth,
703,
(Tex.Civ.App.,
705
Ft.
W.2d
anything
to recover
by judgment
Field,
1938,
h.);
137
n. w.
Urban v.
S.W.
entered in the cause.
Antonio,
137,
(Tex.Civ.App.,
2d
San
139
1940,
h.);
Magnolia Pe
n. w.
Roberts v.
Plaintiff contends that no funda
Co.,
(Tex.Civ.
troleum
160 * * *” Supreme Rhodes v. Court its Per Curiam knowledge. See its error, Opinion Taliaferro, (refusing e.) could writ of n. supra. The court r. Company Few’s interest Insurance America v. Milburn General determine Mary Casper, held 431 S.W.2d non- accrued the benefits which par real workmen’s being Frances Few him husband is not fundamental Life In claimant’s er ty at National Educators interest. Sys agree. Supreme ror. We do not Company Master surance Video tems, Inc., merely that error should not (Tex.Civ. Court held 366 Christi, 1967, been characterized as r. have fundamental App., Corpus writ appellant preserved had its since the error e.) in the trial Travelers court. Company supra. Jacks, 23 S. Vol. Compensation Workmen’s bene Supreme p. Tyra L.J., 180-181. In the extent fits are speaking through its Chief Court Justice they represent disability which accrues “If truly Calvert Fite were an indis said marriage. Piro, during Piro v. suit, agree pensable party we would Worth, Ft. proceeding that the error in in his absence dism.); Speer’s Rights Marital fundamental error which could ; p. p. T.J.2d, Vol. should have been noticed the court of *5 410, 74; Pickens, v. 125 Tex. sec. Pickens * * * appeals on civil its own motion. 951, (1935); Falls 83 S.W.2d 953 Glens indispensable parties over ato Jurisdiction Yarbrough, Insurance Co. 369 S.W.2d v. suit is as essential to the court’s and Waco, 1963, 640, 642 (Tex.Civ.App., n. w. power proceed juris as is in Insurance h.). This court General ** *” subject of the matter. diction Casper, Company 426 of America v. S.W. Assn., Sharpe v. Landowners Oil 127 606, 311, e., 2d writ n. r. 431 S.W.2d 147, 435 (1936). Tex. 92 S.W.2d any portion held that ben employee during efits that accrue to an fact by The error is cured that in which marriage property in of Mil- was rendered favor spouse joint claimant and interest. have Few, wife, Mary Frances burn Few and Since Milburn Few was married Field, jointly. supra; Houston v. Urban total, permanent Frances Few when her Spradlin, supra; Mid Fuel Co. Gas disability began, legal he owner of 29, 732; Zap, 10 73 Tex. S.W. dlebrook v. any compensation for his benefits due 171; Speer’s Smoot, 64 Milliken v. Tex. disability wife’s extent his com Rights Marital in Vol. munity therein, interest and a nec he was p. essary indispensable party benefits; recovery for suit forth are suffi- above set The reasons therefore, it the whole was error to award case; of this require a remand cient here recovered of an- however, in likelihood view of the as a real without his remaining trial, discuss we will Company Insurance of America General question presented. therein; Casper, supra, and cited see cases remaining appellant’s Co., A discussion (Tex. Belt v. Texas 622 175 S.W.2d summation requires a Amarillo, question brief Civ.App., ref.); C. 67 injury at Following her case. facts ; p. T.J.2d, Parties 1(3), 892 44 § J.S. Store, Few re- Mrs. Safeway 131; the Mineóla 3, p. Company v. Travelers carry her to ambulance quested that Jacks, There she Tyler. Paso, Clinic h.). Glenwood El n. w. also fun This days fifteen approximately remained for Equip damental error. Petroleum Anchor Knight; Drs. ment, the care of Wood under Tyra, (Tex. Inc. v. DeCharles, Dr. 1966). by examined once she was Sup., Appellee in her brief states appel- appointment specialist. representative than make an with Dr. De- No Charles, she Jones, consulted Dr. lant Mrs. Few until she instead contacted after family physician appel- her without was released the clinic returned also from knowledge what home and the evidence does not show lant’s or consent. concerning medical
Mrs. Few was told any- time, appellant treatment that if Appellant paid expenses all the in thing. and the fees curred at Glenwood Clinic Wood, Knight Drs. DeCharles. clinic, the Upon from the her release pay any refuses to fees of Drs. periodical- doctors told Few to return Mrs. Jones, complains Thomas and here treatment; re- ly did out-patient she for awarding that judg the trial court erred in turn three within the next month. times it against ment for fees as there those her last she was told to On visit return upon no evidence could which further she to re- treatment was not able neg refused, failed that it have found days. turn to work at the end of ten She aid. medical reasonable furnish lected to again, did not start- return to the clinic but below, developed Under the record as we consulting ed Dr. Mineóla with Thomas of agree appellant’s must with contention but appellant’s knowledge or consent. only as to the fee of Dr. Jones. appellant approxi- She received from after record that in response discloses to Plain mately Thomas, letter ten visits Dr. Admissions, Request appellant tiff’s ad stating appellant could authorize truth request mitted number twen further treatment re- Dr. Thomas and ty-eight to the it effect had quested appointment that she make an with agreed pay for the of Dr. services Tyler. Dr. DeCharles of Mrs. sent Having so Thomas. admitted the truth of this letter Industrial Accident Board under required fact oath Rule replied opinion its insur- *6 Procedure, ap Texas Rules of Civil er right was within its medi- to select the pellant by bound its is admission. service, evidently cal required as her case by specialist. treatment a 7, V.T.C.S.2, Mrs. places Article sec. stopped seeing Thomas, Dr. rather but upon appellant furnishing of the burden 2. “The nursing, ices, chiropractic association shall furnish med- services aid, hospital services, ical nursing, chiro- after as and when notice medicines needed practic may services, injury and medicines as or sub- of the to the association reasonably required injured employee may provide be scriber, at of the time the injury any hospital the aid, nursing, and at time thereafter to serv- said medical naturally cure chiropractic and relieve from the ices, services, effects and medicines resulting injury. expense from the Such treat- the association. at the cost necessary ment shall employee include treatments to re- The shall not be entitled physical rehabilitation, including proper by any to expended amount incurred cover or fitting training pros- hospital aid, the use of him said medical serv- for appliances, period nursing, chiropractic services, thetic ices, for such the as or injury may require sup- medicines, any person nature of the as or nor who shall necessary reasonably plied to em- restore the recover of the same be entitled to ployee physical therefor, to his normal level of the as- the unless association capacity necessary give or as to reason- subscriber have had sociation or shall pain, injury able relief from but in- shall not re- the and shall have notice of any phase neglected fused, clude re- vocational or furnish it or to failed obligation habilitation. The as- of the a At the them within reasonable time. provide hospital injury immediately sociation to as there- services the or time of provided necessary, employee after, herein shall not be held in- shall if the any obligation part clude on the the call available have the pay nursing chiropractor medical, surgeon, physician, association for or surgical may pro- ordinarily or services not as be administer first-aid treatment by hospitals part reasonably necessary expense vided as a of their serv- ices. If the association fails to so fur- the association.” aid, hospital nish reasonable medical serv- by reasonably exactly re is allowed may be that is what aid as But
such medical injury. It consequence statute. quired as a un the conditions specifically also sets out recognizes that first- The statute own, employee may, his on der which immediately after is often needed aid expense at the for medical aid contract the insurer inform injury with no time to are, (1) at These conditions insurer. aid. But after for such of the need immediately or injury time past is and the immediacy of the situation thereafter, treatment to administer first-aid injury, the statute has notice of the insurer may reasonably necessary; as giv must be the insurer provides that then no only the insurer has been if thereafter to contract time in en a reasonable refused, failed injury and has tified of the aid of its choos medical for and furnish reasonable medical neglected or furnish a to offer company ing. If the chooses
aid.
select
originally
other than
one
doctor
right. The
has that
by
employee, it
recognize
general
a
ed
as
We
course,
the choice of
may,
leave
Compensa
insurer
proposition that the Workmen’s
em
entirely in the
of the
physicians
hand
liberally so
tion Act should be construed
informs the em
ployee.
the insurer
purposes for
But
the beneficent
effectuate
that it can
within
reasonable time
ployee
it
Travelers Insurance
which was enacted.
by a doctor
longer
no
treatment
Adams,
(Tex.Civ.
authorize
Co.
S.W.2d 282
affirmatively
employee
Texarkana,
e.).
r.
is
selected
App.,
aid, that
specific,
recovery
reasonable medical
true that the
of medical offers
equally
requirements of
compensa-
fulfilled the
expenses
as a result
insurer has
incurred
em
statutory;
can be
The
recourse
purely
ble
is
there
statute.
ployee
request
the Industrial Accident
recovery
conflict with
statute.
physicians
un
Corp.,
change
Surety
National
Board
order
Robertson v.
Circuit, 1953).
V.T.C.S.,
7a,
or to
der Art.
(Fifth
F.2d 642
proffered physician and
refuse the
contract
V.T.C.S.,
Article
at the em
for services
another doctor
unambiguous
point.
clear and
showing
ployee’s expense.
Without a
“ * * *
enti-
employee
shall not be
company
not offer their choice
did
in-
expended
amount
tled
recover
physicians
time or
within
reasonable
aid
by him
said medical
curred
or inaction
the insur
some other action
*7
*
**
association or subscrib-
unless the
refusal,
amounting
er
to a
failure or ne
of the
er
have had notice
shall
glect,
expenses
insurer is
liable for
the
refused,
neglected to
failed or
shall have
by
employee.
incurred
the
See Travelers
furnish it or them within
reasonable
Garcia,
417
630
Co. v.
S.W.2d
”
* * *
(Emphasis added.)
time.
ref.,
(Tex.Civ.App.,
Paso, 1967,
e.);
El
r.n.
provision
be to
purpose
must
of such
Employers’
Texas
Insurance Association
give
opportunity
select
the insurer
to
Steadman,
(Tex.Civ.
v.
415
211
physician
own
with a
of its
contract
ref.,
Amarillo, 1967,
App.,
e.);
n. r.
Lib
Indemnity
choosing.
American
Co.
Gill,
v.
401
erty Universal Insurance Co.
Nelson,
(Tex.Civ.App.,
1966,
S.W.
Houston,
(Tex.Civ.App.,
S.W.2d 339
1918, writ).
Fidelity and
e.);
United States
r.
Camp,
Guaranty
Co.
argues
“It is not
strongly that
Appellee
Houston, 1963, ref., n. r.
that the claimant must abandon
reasonable
v. Hernan
e.); Travelers Insurance Co.
choosing
her
by a
treatment
doctor
Circuit, 1960).
dez,
(Fifth
Reversed and remanded. spouse may “A sue and be sued with- joinder
out the spouse. the other When claims or liabilities are joint and MOORE, Justice. several, spouses the may joined be under the rules relating joinder parties respectfully part I dissent from generally.” 1963, Amended Acts 58th judg- majority opinion reversing the the Leg., p. 1188, 472, 6, Aug. ch. eff. ground ment on the that there was a defec- 23, 1963; 1967, 739, Acts Leg., 60th p. joinder parties. tive of the ch. eff. Jan. the Appellant complaint makes no Thus, legislature the the granted since on its merits. The com- judgment management wife sole and control over juris- plaint is that the court did not have which she would because the diction enter single person have owned if a and also joined only pro husband was as a provided forma joint that she control have distinguished party real from a community, posi- over all other I take the Appellant objection made no joinder to the passing supra, tion that Art. of the husband as a until legislature grant intended the wife appellees presented after trial when right protect her interest in the commu- proposed court a in which nity by suing of her joinder re- the husband and were wife allowed however, At husband. rate Art. 4626 jointly. cover that, may specifically provides spouse “A sue and joinder be sued without the of the *” * * purely While from a technical stand- spouse." lan- To me this point, major- conclusion reached guage plain and clear. the second While ity appears support have some say sentence of statute does therein, cases cited I do not believe that joint “When claims liabilities are narrow, application these technical several, spouses may joined be under applicable rules are under the facts or relating parties gen- the rules present day erally.” procedure. rules of civil I am (emphasis supplied), I do not be- opposed to a reversal of the case on legislature lieve grant intended to ground that there is a defect wife the right to sue in the first sentence for two reasons. away and take in the second by merely providing
sentence that the hus- “may” joined First, band where claim is it must be remembered joint and several. Legislature the 60th page 739, ch. significant made some *8 changes in the Secondly, agree major- I do not with the duties, respect rights, law with privi- ity I because as view the record hus- leges, powers and liability spouses. of actively band participated in the Among changes, legislature pass- ap- the cause. The record shows that he ed Art. giving spouse V.A.T.S. each peared and testified in behalf of wife. his disposition exclusive control and For this reason I do not how understand community property which he or she the majority could have con- reached the single would have person owned a protag- clusion that the husband was not a provided also for combined control and onist “in sense of the word”. Con- management over all other trary majority, position to the I take the property. testifying that his in in conduct in the case is of his wife sufficient show
behalf protagonist he a interest- that was The PRUDENTIAL INSURANCE COMPA- litigation in his wife. ed behalf of al., Appellants, NY OF AMERICA et my- circumstances I find Because these is complete agreement what with self BEATY, Community Dolline Survivor Practice, McDonald, Civil said Texas Beaty, De- the Estate of Willis 3.08.1, p. cases) as (citing Vol. ceased, Appellee. follows: No. 7989. effect, actions, “What in such is Appeals Court Civil plain- petition’s naming Texarkana. the wife as for- joining ‘pro tiff husband prior to ma’? Some technical decisions Procedure held such Rules Civil
pleading the hus- insufficient to make
band real has even been held a may properly
that the not in- is
clude the name when he husband’s forma, if it he
joined pro and that does predi- holdings not bound. But
is merely joinder insufficiency
cated an ‘pro allega-
upon the words forma’ in the enumerating in-
tions were philosophy underlying
consistent with
the Rules of Civil One who Procedure.
actively participates may in a be cause judgment though he
bound party: be
named as he should not less pleadings
so his name car- because ‘pro appendix. prior forma’ Even
ries Rules, ‘pro forma’ the words when
clearly they disre- surplusage, were were
garded. applied The test whether active, real, ‘a militant husband was
litigant, (or merely) the suit had entered technically purpose for the
clothing authority his to main- wife with right’.
tain the suit in There own longer be that the
should no doubt record as sufficient when the
a whole shows the husband was protagonist.
active Even showing, join-
affirmative the husband’s
der, qualified by pro forma, should
sufficient absent a contention that he has knowledge
been his joined without
consent.” judg-
I would reform and affirm the
ment.