*1 HUTCHESON, Chief Judge. Filed as Lead and man- ager community, to recover dam- ages suffered wife in an automobile collision with a car owned one of the defendants and driven other, by the complaint charged the defendants with negligently operating their thereby car and causing sued for. defendants, denying the charges of replied with Holmes, Judge, dissented. counter-charges .part
1003 action for cause of driving that the plaintiff his who and brother husband or juries to either plaintiff’s car. community; re- belonged to the concluded, sub- the court evidence1 community and covery property;3 jury mitted the case to the for complete de- negligence is a the husband’s a special verdict and also submitted 4 community prop- fense in Texas and the by them, they only if to be answered but for in- his erty generally, states action inquired plaintiff. found for This issue opinion, for juries wife, was of the cars whether drivers of both or not 5 his letter to the coun- reasons in neg- were and whether if sel, not control- these decisions were ligence produce of both concurred therefore, He, defend- ling here. denied injury. judg- judgment gave ants’ for motion and returned a verdict for plaintiff. ment for the 3 plaintiff.2 They also answered the plaintiff issue in affirmative. Both and insisting that Defendants here judgment moving on for joint in engaged brothers enter- all the district at dis- prise, permitted in effect agreeing with defendants’ contentions: plaintiff wrong,6 to recover for his own plaintiff 1. and broth- This was that his two Hill, Traction Northern Texas Co. ers, California, come from citizens Ry. Tex.Civ.App., Dallas 297 S.W. plaintiff’s car, in to Texas California High, & Terminal v. arrangements expens- to share the Clyde & Co. 735. Cf. W. W. es, funeral, their father’s attend Dyess, 10 59 A.L. driving. taking about brothers turn R. American Ju baby Plaintiff’s wife and were also risprudence, Community Property, Sec. party. accident, At time 36, p. p. Sec. 198. Southern Pac. plaintiff’s Bauer, brother, Keith Day, Cir., Co. v. Zara Friona, driving they and as came into gosa Craven, Cal.App., P.2d their car came into collision defend- and defend- 5. “You are the defendant’s advised plaintiffs Both ant’s car. ants for motion filed herein on respec- as to their offered evidence 10-13-49, of the returned verdict exercise, care, want, tive due and overruled, and entered tending neg- there was evidence to show for the ligence part both con- drivers producing injury. curring in theory of motion "The defendant’s driver, Bauer, Keith plaintiff, Jury, Har- for the find 2. “We the in turn Har- Bauer, and assess the old E. Bauer, and raises a old so barrier Opal wife, for Bauer, suit husband’s for the $1000.00, sum at wife, Opal covering Bau- necessary at services care er, presents question, a novel but I think and for of $750.00 sum the reasonable any present the contention outruns deci- necessary nursing and services at care Imputed negligence in Texas. sion after $150.00, and for sum of the reasonable necessary negligence. all is constructive hospitalization at the reasona- fact necessary $750.00', and for ablo sum joint trip ing wrong does not do- Dallas, transportation from Hereford to it whatever. Yet is for that reason Riverside, and from Dallas to and from that the driver’s alone must be and return at the to Portland Riverside imputed to the husband case. $150.00, and for the sum of reasonable words, the husband was room and board cost personal wrong doing under the verdict was in the hos- while his Hereford and do not believe that the pital sum of $175.00 the reasonable at plaintiff herein is in- in the reasonable neck brace and for policy with the reason and consistent $25.00.” sum of cited the cases defendant’s coun- Tex.Jur., Sec. Husband 3. 23 sel.” Taylor incl; Catalon, 106, pp. 130-133 102; Wright Leeper, El Co. v. Electric Paso Tex. Com.App., Clyde W. Wright, W. v. Roberts Dyess, Magnolia v.Co. Silva v. Tex. Petroleum Cal.App.2d 796, Market, P.2d Civ.App., Judge (dissenting). HOLMES, Circuit judgment, should that the have been but entered not opinion puts up a straw majority them. down, man but it does and knocks mentioned touch novel *3 of Texas settles The Constitution opinion able learned trial power Legislature7 to beyond of says contention out- appellants’ which it, compensation personal change Texas; present any runs decision by wife is sustained all, only con- imputed negligence, after property. negligence, structive and the fact appel agree, with We joint trip does finding of the lants that under the Yet, he any wrong whatever. not a entitled not says alone that the it is for that reason entering judgment that the court erred be driver’s must husband in this since the husband though, agree, personal wrongdoing that de We cannot jury. a fendants were entitled to verdict of the judgment should and that the the verdict I might with the well close this dissent be rendered for them. reversed and here quotations above indirect from the excel- special com answer to the issue is court, opinion lent of the trial but the pletely with inconsistent verdict. pellee’s brief is to be dedicated to the said jvhich, un a case in This this is proposition the novel cor- Civ.Proc. 28 U.S. der Rule Fed.Rules rectly accord with decided below and is in C.A. answer to jurists through- thinking “forward with inconsistent country.” Therefore, out the for the bene- it, a judgment on court could not enter jurisprudence, the Texas I use fit of will but must either return case to counsel, of the material some who con- answers, of its for further consideration tends that the trend American decisions grant or new re a trial. Since he did not repudiation is the of the doctrine of im- have turn the he should case puted negligence, authority no ordered a new trial. country imputed negligence has" ever is reversed and the cause twice, is, negligent party from one remanded for further and incon- negligent, again one not and then proceedings. sistent one to a third innocent party, which appellants is what the seek Judge (specially con- to have done and what the trial court re- curring) . fuséd do. Bricker 105, 109, 21 N.W.2d Mich. personally prefer I the rule an- While Michigan quoted dissent, I law in the believe the nounced approval controlled, following: typi- “In the by which must be be presented, hand, cal there is otherwise, on the one opinion as is shown plaintiff-passenger, wholly free I therefore concur in the herein. wrongdoing. or On the other reversal. expenses and all Wraith, bills inci- Milgate Cal.2d P. compensa- dent to the collection of said 2d 10. tion.” Rev.St.1925, art. act of act, though Legislature This tried declared: separate expenses in it to from other el- moneys property as received “All . injury, ements was declared unconsti- compensation for sus- personal injuries tutional actions for separate shall be her wife tained under them re- except property, actual neces-. such community property. mained may sary expenses have accumulated Jur., Husband and Sec. —Per- hospital fees, the husband Injuries page sonal — October, University of negli- whose hand, tort-feasor Journal, Bar number of passenger brought harm to such gence has thought, quote, which I food injured harm. such or contributed to security following: right “The choose must party brings The .court suit. person brings to mar- spouse which innocent, the other one between from birth riage is his is his own. It preferred ? Must guilty! Which is to Con- higher either the law than drag in this time to continue for all we It is monstrosity court stitution or decision. legal exploded and obsolete for the vindica- him and so is throwing loss on with the sole result injury.” The article of its is in tion negli- 'imputed party? The the innocent *4 Review, p. Law Texas wrong-doer. prefers gence’ doctrine he allowed favored one He is the law, I applying think wrong- go responsibility extend the doc- federal court should not upon doing. is thrown The loss imputable negligence than trine of further pointed passenger. has done; nocent As been ever courts state have out, pernicious abolition of doctrine and, therefore, I dissent. only wrong-doer affect escape preventing his the extent of liability own for his rock-bottom, one free fault. At imputed negligence doctrine is a denial justice parties litigant.” as between
In order to bar driver of UNITED STATES. ROBERTS v. imputed twice, the car must which is 97, upon analogous basing No. Docket one inference support another. The fact relied on to an United States proven inference must be admitted. Second Circuit. Community Company Natural Hen Gas v. Argued 15, 1950. Dec. ley, Tex.Com.App., Inter S.W.2d Bettis, national Travelers’ Association 7, 1951. Decided Feb. 67, 120 Tex. 35 S.W.2d Green v. Ry. Co., & P. 168,
Texas Tex. 81 S.W.
2d Coal Com Texas Pacific & Oil
pany Wells, Tex.Civ.App., 151 S.W.2d Same case affirmed 2,
Court Tex. Walgreen Company Latimer v. Drug
In the instant
joint adventurer, since she had no control operation
over the of the automobile. Gal
veston H. Kutac, R. Co. v. Id., S.W. etc., S.W. Louis, Herrell St. R.R. Co. 324 Mo. ; C.J.S., Sec. 705 65 C.J. Negligence, Applebee Ross, § Mo.
Sup., A.L.R. Collier Rives, Tex.Civ.App., 103
See résumé of an excellent article Austin,
Leon Law, Professor of