# Charter Oak Fire Insurance Company v. Few

> Court of Appeals of Texas · June 11, 1970 · 456 S.W.2d 156

URL: https://www.frixlaw.com/law-library/cases/9771947

## Case

- **Full name:** The CHARTER OAK FIRE INSURANCE COMPANY, Appellant, v. Mary Frances FEW Et Vir, Appellees
- **Court:** Court of Appeals of Texas
- **Decided:** June 11, 1970
- **Citations:** 456 S.W.2d 156; 1970 Tex. App. LEXIS 1850
- **Precedential status:** Published
- **Opinion:** Dissent by Moore
- **Judges:** Dunagan, Moore
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9771947

## Opinion text

MOORE, Justice.
I respectfully dissent from that part of the majority opinion reversing the judgment on the ground that there was a defective joinder of the parties.
Appellant makes no complaint of the judgment on its merits. The only complaint is that the court did not have jurisdiction to enter the judgment because the husband was joined only as a pro forma party as distinguished from a real party. Appellant made no objection to the joinder of the husband as a pro forma party until after trial when appellees presented the trial court a proposed judgment in which the husband and wife were allowed to recover jointly.
While from a purely technical standpoint, the conclusion reached by the majority appears to have some support in the cases cited therein, I do not believe that the application of these narrow, technical rules are applicable under the facts or the present day rules of civil procedure. I am opposed to a reversal of the case on the ground that there is a defect in the parties for two reasons.
First, it must be remembered that in 1967, the 60th Legislature at page 739, ch. 309, made some significant changes in the law with respect to the rights, duties, privileges, powers and liability of spouses. Among other changes, the legislature passed Art. 4621, V.A.T.S. giving each spouse the exclusive control and disposition of that community property which he or she would have owned if a single person and also provided for combined control and management over all other community property.
At the same session, the legislature also enacted Art. 4626, V.A.T.S., providing that:
“A spouse may sue and be sued without the joinder of the other spouse. When claims or liabilities are joint and several, the spouses may be joined under the rules relating to joinder of parties generally.” Amended by Acts 1963, 58th Leg., p. 1188, ch. 472, sec. 6, eff. Aug. 23, 1963; Acts 1967, 60th Leg., p. 739, ch. 309, sec. 1, eff. Jan. 1, 1968.
Thus, since the legislature granted the wife sole management and control over that community property which she would have owned if a single person and also provided that she is to have joint control over all other community, I take the position that in passing Art. 4626, supra, the legislature intended to grant the wife the right to protect her interest in the community by suing without the joinder of her husband. At any rate however, Art. 4626 specifically provides that, “A spouse may sue and be sued without the joinder of the other spouse." * * *” To me this language is plain and clear. While the second sentence of the statute does say that “When claims or liabilities are joint and several, the spouses may be joined under the rules relating to joinder of parties generally.” (emphasis supplied), I do not believe the legislature intended to grant the wife the right to sue in the first sentence and take away such right in the second sentence by merely providing that the husband “may” be joined where the claim is joint and several.
Secondly, I do not agree with the majority because as I view the record the husband actively participated in the trial of the cause. The record shows that he appeared and testified in behalf of his wife. For this reason I do not understand how the majority could have reached the conclusion that the husband was not a protagonist “in any sense of the word”. Contrary to the majority, I take the position that his conduct in testifying in the case in *164 behalf of his wife is sufficient to show that he was a protagonist and was interested in the litigation in behalf of his wife. Because of these circumstances I find myself in complete agreement with what is said in McDonald, Texas Civil Practice, Vol. 1, sec. 3.08.1, p. 243 (citing cases) as follows:
“What is the effect, in such actions, of the petition’s naming the wife as plaintiff and joining the husband ‘pro for-ma’? Some technical decisions prior to the Rules of Civil Procedure held such pleading insufficient to make the husband a real party. It has even been held that the judgment may not properly include the husband’s name when he is joined pro forma, and that if it does he is not bound. But holdings which predicated an insufficiency of joinder merely upon the words ‘pro forma’ in the allegations enumerating the parties were inconsistent with the philosophy underlying the Rules of Civil Procedure. One who actively participates in a cause may be bound by the judgment though he is not named as a party: he should not be less so because in the pleadings his name carries a ‘pro forma’ appendix. Even prior to the Rules, when the words ‘pro forma’ clearly were surplusage, they were disregarded. The test applied was whether the husband was ‘a real, active, militant litigant, (or had merely) entered the suit pro forma for the purpose of technically clothing his wife with authority to maintain the suit in her own right’. There should no longer be any doubt that the joinder is sufficient when the record as a whole shows that the husband was an active protagonist. Even without this affirmative showing, the husband’s join-der, qualified by a pro forma, should be sufficient absent a contention that he has been joined without his knowledge or consent.”
I would reform and affirm the judgment.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9771947. Public record. Not legal advice.