S.A. A.P. Ry. Co. v. Flato , 13 Tex. Civ. App. 214 ( 1896 )

This suit was instituted by the appellee, Mrs. Flato, and her husband, F.W. Flato, in the District Court of Fayette County, April 28, 1893, to recover alleged damages to their residence in the town of Flatonia, resulting from the erection by defendant company, in 1892, of a spur to its main track on Seventh street, in said town, just opposite to the residence of appellees. The railroad was built through the town in 1887. This spur was built by the receiver of the road, and not by the company. The facts show that, at the institution of the suit, the defendant company was in possession of its road and operating the same, the property having been restored to it without sale; and that the revenues derived from the operation of the road while in the hands of the receiver were by him, in large measure, expended in betterments, said betterments aggregating not less than $100,000. But these facts are not alleged on the part of the plaintiff, nor do they appear in the pleadings of the defendant. The facts further show that the residence of the plaintiffs was the separate property of the wife. The defendant, besides several demurrers, interposed various other defenses; and, among others, a plea in abatement, and the plea of res adjudicata. Upon trial of the cause, verdict and judgment was rendered for plaintiffs for $500, with interest thereon at 6 per cent. per annum from June, 1892; and the defendant's motion for new trial being denied, defendant appealed to this court.

The following charge was requested by the defendant, and refused by the court:

"You are instructed that the undisputed evidence shows, that the injury was done by the receivers of the defendant Railway Co. while its road was in their possession, and there is no pleading upon which the defendant company could be held liable, and you will find a verdict for defendant."

The court erred in refusing this charge, and the judgment of the court must be reversed and the cause remanded for another trial. It is elementary, that a judgment must have for its basis not only facts, but averments, and that a judgment rendered, for which there is no warrant in the pleadings of the litigants, will be reversed upon complaint of the party against whom it has been rendered. Nor does the fact that the party complaining admitted the existence of facts upon the trial, which, had they been pleaded, would have authorized the rendition of the judgment, constitute an exception to the rule, which requires that a judgment must be consistent with and be supported by the allegations of the pleadings. In this case, the plaintiffs complain that their residence was damaged by the wrongful act of defendant; but the evidence is, that the act complained of was an act done by the receiver of the defendant corporation; while the law is that the defendant is not answerable for the acts of its receiver, except upon certain contingencies, which must be alleged and proved, to allow a recovery against the corporation.

There was no error in overruling the defendant's plea in abatement. There was no misjoinder of parties. The property charged to have been damaged was the separate property of Mrs. Flato, and any recovery for damages to that property would be no part of the community estate of the plaintiffs, but would go to the corpus of Mrs. Flato's separate estate. Nor did the court err in overruling the plea of res adjudicata. The former suit was instituted by the husband in his own right, and not in that of his wife; had that suit been tried upon the facts, and had it been developed upon the trial that the property was Mrs. Flato's, and not community property, or the separate property of the husband, no recovery could have been had for either Mr. or Mrs. Flato, as there would have been a clear variance between the allegata and probata. Hence, it is evident that this suit and the former suit by F.W. Flato against defendant are not suits between the same parties and the plea of res adjudicata was therefore properly rejected by the court. It is further evident from the disposition of the former suit, that it was not a suit by or for Mrs. Flato, or her coverture would have defeated the plea of limitation which was sustained against her husband, the plaintiff in the suit. We deem it not necessary to notice other assignments made by appellant.

The judgment is reversed and the cause remanded.

Reversed and remanded.