192 S.W. 807 | Tex. App. | 1917
The appellant contends that the husband may not sue to recover damages for personal injuries to his wife, because under the present law such damages are the separate property of the wife. Article 1839 (Vernon's Sayles Stat.) provides that:
"The husband may sue either alone or jointly with his wife for the recovery of any separate property of the wife; and, in case he fail or neglect so to do, she may, by the authority of the court, sue for such property in her own name." *809
The effect of this statute is to constitute the husband the legal agent of the wife in the particular purpose of suing for the recovery of her separate property. And, the husband being by this statute constituted the agent of his wife, his acts as such particular agent, done in good faith, would be binding and conclusive on the wife. Cannon v. Hemphill,
The fifth assignment of error complains of the refusal of the court to give a peremptory instruction in favor of appellant, upon the ground that the wire which caused the injury was torn from its fastenings and left loose or sagging by a third person. It may be assumed from the evidence that Virgil Roberts caused to be unfastened and left loose the guy wire extending above and across the road, in order to admit the passage thereunder of the boat being by him transported along the road. But the act of that person would not, in the evidence of the case, relieve appellant, as a matter of law, of any liability to appellee's wife. For from the evidence the jury was authorized to find as a fact that appellant had notice of the fact of the wire's obstructing the passage of the road, and did not remove or remedy the condition of the wire within a reasonable time after notice. And the appellant owed appellee's wife the duty to use reasonable care in removing the wire or remedying its condition, involving the safety of the highway, caused by third persons. 4 Thompson on Neg. § 4264. It, therefore, was not error to submit the case to a jury for a finding of whether or not the negligence of appellant, in failing to remove or remedy the condition of the wire after notice, was the proximate cause of injury.
The court's charge authorized a recovery in favor of appellee Burge upon the finding by the jury that the appellant strung the wire, or permitted it to be, across the road so near to the surface of the road as to incommode the public using the road, and that appellant had sufficient notice of the condition of the wire before the injury, and failed to use ordinary care to remedy the condition of the wire before the injury after notice. It is believed there was no error in the instruction. The petition predicated liability against the appellant on its negligence in having the wire "so low and slack that vehicles with covers or tops * * * were in danger of being caught by said wire" and in placing or maintaining "the said wire so near the ground as to be guilty of negligently obstructing said public road against the passage of any such vehicles which were in common use along said road." Obstructions of the public road of the character averred are invasions of the right of the public to the use of the public road, and may Justify a recovery for injuries proximately resulting therefrom. And if, in the facts, appellant was required to have notice of the obstruction for a sufficient length of time before the injury to have cured the defect and prevent the injury in order to render it liable to appellee's wife, the court properly applied that rule, and made appellant's liability to be dependent thereon. Appellant may not predicate injury on the charge, and the assignments of error in respect to the charge are overruled.
By the tenth assignment of error it is contended that the court erred in peremptorily instructing a verdict in favor of appellee Krouse. According to the evidence, Virgil Roberts and his employés were the persons who caused the wire to be lowered, and they were not the employés of appellee Krouse. Virgil Roberts was, in legal effect, an independent contractor respecting the hauling of the boat. And if liability may be predicated against Mr. Krouse for the agreement of his agent Ray with Virgil Roberts, as a part of the contract to haul the boat, to assume for Roberts responsibility for damage to telephone wires, it would arise only in favor of Virgil Roberts in virtue of such contract of indemnity if Virgil Roberts were sued for the damage. It is therefore believed that appellant may not predicate liability for tort against appellee Krouse, and consequently the court did not err in giving the peremptory instruction.
Judgment is affirmed.
