On Appellant’s Motion for Rehearing.
In our original opinion in this cause we reversed the judgment of the trial court and remanded the cause for a new trial. In its motion for a rehearing appellant, First National Bank in Houston, calls our attention to the fact that in our opinion we stated that “H. B. Finn answered defendant’s cross-action by special demurrer, general denial and by special exceptions, and pled that the property damaged was his separate property and that Mrs.' H. B. Finn had no right, title or interest’ therein.” In our statement to the effect that H. B. Finn pled that the property damaged was his separate property and that Mrs. H. B. Finn had no right, title or interest therein, we were in error.
In the original action brought by H. B. Finn against the Century Insurance Company, Ltd., he alleged in his trial petition that the property covered by the insurance policy in question was his separate property and that Mrs. H. B. Finn had no right, title or interest therein, but there was no such allegations in-his answer to the bank’s cross-action against him.
In the case of Campbell v. Johnson, 290 S.W. 526, the Commission of Appeals in its opinion held that the separate property of the husband can not be subjected to the payment of damages occasioned by the tort of his wife and that, upon appropriate pleadings or request, seasonably filed, the judgment should exempt his separate property, citing Jackson v. Dickey, Tex.Com.App., 281 S.W. 1043, but that where the husband sought no such exemption in the trial court he cannot first raise the issue in the Court of Civil Appeals. (Emphasis ours.)
' Under the above authorities, H. B. Finn having failed to plead the exemption of his separate property from damages occasioned by the tort of his wife in answer' to the cross-action of appellant, First National Bank in Houston, in the trial court, he is precluded from raising said issue in this court, and it becomes our duty to sustain the contentions of appellant, First National Bank in Houston, and to here render judgment that the judgment of the trial court in favor of H. B. Finn against Century Insurance Company, Ltd., and in favor of Century Insurance Company, Ltd., against First National Bank in Houston be affirmed and that the judgment of the trial court in favor of H. B. Finn on the cross-action of First National Bank in Houston against H. B. Finn be reversed and judgment here rendered in favor of First National Bank in Houston on its said cross-action against H. B. Finn in the sum of $675.00, and it is so done.
Appellant’s motion for rehearing granted, and judgment of trial court affirmed in part, and in part reversed and rendered.