dissenting.
I am not in accord with the holding in the majority opinion.
The plaintiff, who was divorced from her former husband, brought suit and recovered damages for personal injuries sustained by her at a time when she was a married woman.
The defendant’s sole contention here is that although plaintiff was divorced at the time of the trial, she was a married woman at the time the cause of action accrued; and since her former husband did not join in the suit, it was error for the court to render judgment in her favor for the full amount of the damages sustained by her.
The defendant did not file any plea in abatement or any exception to the pleading, setting up the lack of necessary parties, nor did he otherwise object to proceeding to trial under the pleadings as they were. It is true that he filed a general demurrer to plaintiff’s petition, but this plea was not called to the attention of the court, and was therefore waived. There was no objection to the charge, nor was there any request that the court limit plaintiff’s recovery to one-half of the amount of the jury verdict. The first and only time that the defendant raised the question of nonjoinder of parties in the trial court was by an assignment in the motion for new trial, to the effect that the plaintiff’s husband was a necessary party to the suit.' There was no assignment in the motion for new trial that the judgment was excessive or that the trial *46court erred in failing to properly apportion the damages. No statement of facts was brought up with the record. •
I concede that damages recoverable for personal injuries sustained by the wife during marriage are community property, and upon dissolution of the marriage by divorce the cause of action for such damages was owned jointly by the plaintiff and her former husband.
Since the plaintiff’s former husband was a joint owner of any proceeds that might be recovered for the injuries suffered by her, he was a necessary party to an action to recover such damages, in the sense that his rights therein could not be adjudicated without his presence in the suit. He was not a necessary party, however, in the sense that no judgment could be rendered adjudicating her rights without his presence. The rule in this respect in this State is announced as follows:
“In actions ex contractu a nonjoinder of parties interested in the cause of action is fatal, whether or not the defect of parties be pleaded in abatement; but in actions ex delicto it seems such nonjoinder is available only upon plea in abatement, or by way of apportionment of damages on the trial.” Hughes-Buie Co. v. Mendoza (Tex. Civ. App.), 156 S. W. 328.
See also May v. Slade, 24 Texas 205; Houston & Texas Cent. R. R. Co. v. Knapp, 51 Texas 592; Cummings v. Masterson, 42 Tex. Civ. App. 549, 93 S. W. 500; 1 Chitty on Pleadings, 16 Am. Ed., 98; 32 Tex. Jur. 46.
In May v. Slade, supra, it was said:
“That tenants in common, must join in the action of trespass qitare clmisim, fregit, is well settled. Austin v. Hall, 13 Johns. 286; Decker v. Livingston, 15 id. 479; Murray v. Webster, 5 N. H. 391. There is nothing in our practice, to require a departure from this rule of the common law; but there is a great reason to adhere to it, to prevent multiplicity of suits, and the inconvenience that would arise from the bringing of several suits, and allowing several recoveries for the same trespass. The objection of the non-joinder of the co-tenant, it is true, can, in general, only be taken by plea in abatement, or by way of apportionment of the damages on the trial. 1 Chit. PI. 66.”
■ In Houston & Texas Cent. R. R. Co. v. Knapp, 51 Texas 592, 600, it is said:-.
*47“If at the time of these overflows she was not the sole owner of the land injured, but owned the same jointly with the heirs of her deceased husband, the non-joinder of her cotenants could only be taken advantage of by plea in abatement or by way of apportionment of damages. (May v. Slade, 24 Tex. 208; 1 Redf. on Railw., secs. 9, 21; Wood on Nuisances, ch. 27.)
“No charge was asked limiting plaintiff’s recovery for permanent damages to the land according to her estate or interest, and thus apportioning the damages.”
In the case at bar the defendant did not object to the nonjoinder of the former husband by plea in abatement nor by exception to the pleadings. Neither did he request the apportionment of the damages on the trial. In his motion for new trial he presented no assignment that the judgment was excessive nor that the court erred in failing to apportion the damages. His only assignment was that the judgment was erroneous because plaintiff’s former husband was not a party to the suit. He was not a necessary party to the action by her to recover whatever damages she had suffered, and the assignment was not sufficient to call the court’s attention to the ex-cessiveness of the judgment. If he had called the matter to the attention of the trial court, doubtless the court would have granted the relief requested; but having failed to do so he waived the right to have the damages apportioned.
Moreover, the plaintiff in her petition asserted a right to recover the whole of the damages. The sufficiency of her pleadings for this purpose was not challenged by any exceptions. She was not required to plead the evidence showing her right to recover the damages sought by her. There was no statement of facts filed on appeal, and in the absence thereof it will be presumed that the evidence supported the judgment; and, as said by the Court of Civil Appeals, that she established, the right by proof of an assignment, or otherwise, to recover the whole of the damages. Thomas v. Chapman, 62 Texas 193; Gist v. Tsesmelis (Tex. Civ. App.), 153 S. W. (2d) 277.
In my opinion the defendant should not be permitted to raise, for the first time, in the Court of Civil Appeals the ex-cessiveness of the judgment.
Opinion delivered November 25, 1942.