# Cohen v. Hill > Court of Appeals of Texas · May 8, 1926 · 286 S.W. 661 URL: https://www.frixlaw.com/law-library/cases/9831846 ## Case - **Full name:** Cohen Et Ux. v. Hill. - **Court:** Court of Appeals of Texas - **Decided:** May 8, 1926 - **Citations:** 286 S.W. 661; 1926 Tex. App. LEXIS 728 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Dunklin - **Cited by:** 13 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/9831846 ## Opinion text On Motion for Rehearing. Appellants insist, with much earnestness, that we erred on original hearing of this cause in overruling their many assignments of error to the admission of testimony tending to show several bodily injuries sustained by the appellee in the accident other than those specifically alleged, and pointed out in our original opinion. Following are some of the leading eases relied on in support of that contention: Houston & T. C. Ry. Co. v. Gerald, 60 Tex. Civ. App. 151 , 128 S. W. 169 ; Southern P. Co. v. Martin, 98 Tex. 322 , 83 S. W. 675 ; Northern Texas T. Co. v. Jenkins (Tex. Civ. App.) 266 S. W. 176 ; Southwestern Telegraph & Telephone Co. v. Tucker (Tex. Civ. App.) 98 S. W. 909 ; Campbell v. Cook. 86 Tex. 630 , 26 S. W. 487 , 40 Am. St. Rep’ 878; Hall v. Coal & Coke Co., 260 Mo. 351 , 168 S. W. 933 , Ann. Cas. 1916C, 375. In Southern P. Co. v. Martin, supra, the following was quoted with approval from an authority there cited, to wit: “While it may be sufficient to specify the main fact, yet if it is attempted to particularise the injuries arising from the principal one, all that it is designed to prove should be alleged.” In that case the following was said: “After making the general allegation, ‘his body was bruised and lacerated from head to foot by heavy boxes and oth.er * * * articles falling upon him,’ the petition entered with remarkable particularity into the statement of the various injuries which the plaintiff claimed to have received in the accident, which were sufficient in number and character to justify, if true, the statement that he was ‘bruised and lacerated from head to foot,’ and one reading the petition is impressed with the view that the pleader intended to specify in what manner his ‘body was bruised and lacerated from head to fpot.’ ” It was then held that the court erred in admitting proof of fracture of the femur or thigh bone and that the limb was shortened, since those injuries were not alleged in the petition, and they were not such injuries as would necessarily result from those alleged. Other decisions cited by appellant are to the same general effect. As indicated by the language noted above in the Martin Case, the test to be applied is a rule of construction of the language used by the pleader in order to determine what was really meant, rather than a hard and fast rule that the inclusion of certain injuries would exclude all others. It is a familiar rule that as against a general demurrer, and as against objections to proof on the ground that there is no basis therefor in the pleading, every reasonable intendment will be indulged in favor of the pleading, and effect will be given to all of its material allegations when reasonably possible. Flint, etc., Mfg. Co. v. Beckett, 167 Ind. 491 , 79 N. E. 503 , 12 L. R. A. (N. S) 824. And especially is this true when the objection is raised for the first time when evidence is offered to support the pleading. German Nat. Bank v. Kautter, 55 Neb. 103 , 75 N. W. 566 , 70 Am. St. Rep. 371 . See, also, 21 R. C. L. pp. 464-466; rule 17 of rules foi( district and county courts. Those general rules furnish the only proper guide, since it is hardly to be expected to find two decisions involving exactly the same conditions with reference to the pleadings and the evidence offered in support thereof. Undoubtedly, damages are recoverable for physical pain and a shock to the nervous system, proximately caused by the negligence of another. Those results were specifically alleged in plaintiff’s pleading, and damages were claimed by reason thereof; and we believe it would be unreasonable to conclude that the allegations in the petition to the effect that plaintiff has sustained a severe shock to her nervous system, rendering it difficult for her to sleep at night, and that her entire body is subject to aches and pains which she did not suffer prior to the collision, should be limited to such results only as flowed from the specific injuries to her right foot and leg and left side. It is reasonably inferable that aches and pains throughout the entire body necessarily resulted from *666 bodily injuries, a part of which were other than those specifically alleged; and while under the pleading there could be no recovery for impaired ability to transact business resulting from such other injuries, yet in the absence of a special exception to the allegation, they could be proven in order to show physical suffering resulting therefrom. We believe this conclusion finds ample support in the following decisions: Northwestern Nat. Ins. Co. v. Woodward, 18 Tex. Civ. App. 496 , 45 S. W. 185 (writ of error denied); Tex. Elec. Co. v. Worthy (Tex. Civ. App.) 250 S. W. 710 ; Ft. Worth & D. C. Ry. Co. v. Morrison, 58 Tex. Civ. App. 158 , 123 S. W. 621 ; Missouri, K. & T. Ry. Co. v. Hawk, 30 Tex. Civ. App. 142 , 69 S. W. 1037 ; Texas Cent. Ry. Co, v. Wheeler, 52 Tex. Civ. App. 603 , 116 S. W, 83; Southern Telegraph & Telephone Co. v. Evans, 54 Tex. Civ. App. 63 , 116 S. W. 418 ; Texas & P. Ry. Co. v. Curry, 64 Tex. 85 ; Southern Pac. Ry. Co. v. Sorey (Tex. Civ. App.) 142 S. W. 119 ; rule 17 for district and county courts, Harris’ Rules of Courts, p. 145, and decisions there cited. . Complying with appellants’ request for further findings, we will say that in addition to bodily injuries testified to by plaintiff, enumerated in our former opinion, to which appellants objected because not specifically alleged, were the following; Injury to face leaving a scar and causing swelling and numbness, injury back of ear causing formation of tumor or cyst, and bruise on left knee and left leg which left varicose veins — from all of which plaintiff testified she has suffered pains. In addition to the authorities cited in our former opinion to support the conclusion there reached that the appellant Max Cohen having undertaken to supply his family with the conveniences and pleasures of traveling in an automobile, and having purchased a car for that use, and having authorized his wife to drive it for that purpose, he is responsible for her negligence in so doing, under the law of principal and agent, we wish to add the following: In Plasch v. Fass, 144 Minn. 44 , 174 N. W. 438 , 10 A. L. R. 1446, it was held that the husband was liable for the negligence of the wife in the operation of an automobile furnished by him for the comfort and pleasure of the. family, and the opinion shows a discussion of numerous authorities to support that ruling. The same ruling was made in the following cases: McWhirter v. Fuller & Wife (1918) 170 P. 417 , by the Supreme Court of California ; Hutchins v. Haffner (1917) 63 Colo. 365 , 167 P. 966 , L. R. A. 1918A, 1008, by the Supreme Court of Colorado; Ulman v. Lindeman (1919) 44 N. D. 36 , 176 N. W. 25 , 10 A. L. R. 1440, by the Supreme Court of North Dakota; Boes v. Howell (1918) 24 N. M. 142, 173 P. 966 , L. R. A. 1918F, 288, by the Supreme Court of New Mexico; Watts v. Lefler (1925) 190 N. C. 722 , 130 S. E. 630 , by the Supreme Court of North Carolina; Stiekney v. Epstein (1923) 100 Conn. 170 , 123 A. 1 , by the Supreme Court of Connecticut. It is stated in a note beginning on page 228, vol. 5, A. L. R., that the rule of liability of the head of a family for the negligence of his child in operating an automobile furnished by him for use of the family has been followed in Arizona, California, Georgia, Minnesota, Missouri, Montana, South Carolina, Tennessee, Texas, and Washington. And the following is quoted from the opinion of the Supreme Court of Tennessee in King v. Smythe (1918) 140 Tenn. 217 , 204 S. W. 296 , L. R. A. 1918F, 293: “If a father purchases an automobile for the pleasure and entertainment of his family, and, as Dr. Smythe did, gives his adult son, who is a member of his family, permission to use it for pleasure, except when needed by the father, it would seem perfectly clear that the son is in the furtherance of this purpose of the father while driving the car for his own pleasure. It is immaterial whether this purpose of the father be called his business or not. The law of agency is not confined to business transactions. It is true that an automobile is not a dangerous instrumentality so as to make the owner liable, as in the case of a wild animal loose on the streets; but, as a matter of practical justice to those who are injured, we cannot close our eyes to the fact that an automobile possesses excessive weight, that it is capable of running at a rapid rate of speed, and when moving rapidly upon the streets of a populous city, it is dangerous to life and limb and must be operated with care. If an instrumentality of this kind is placed in the hands of his family by a father, for the family’s pleasure, comfort, and entertainment, the dictates of natural justice should require that the owner should be responsible for its negligent operation, because only by doing so, as a general rule, can substantial justice be attained.” In the case of Allen v Bland, 168 S. W. 35 , a judgment against a father for damages resulting from the negligence of his son, an 11 year old boy, was affirmed by the Court of Civil Appeals and a writ of error was refused by our Supreme Court. While that suit seems to have been based on alleged negligence of the father in permitting the boy to drive the car, yet the court cited with approval, as applicable to the case, several decisions supporting a recovery under like circumstances by reason of the fact that by furnishing a car for the use of the family, the member who' operates it for that purpose thereby becomes, his agent, for- whose negligence he is liable. The same doctrine was announced and followed in Marshall v. Taylor, 168 Mo. App. 240 , 153 S. W. 527 ; Miller v. Week, 186 Ky. 552 , 217 S. W. 904 ; Stowe v. Morris, 147 Ky. 386 , 144 S. W. 52 , 39 L. R. A. (N. S.) 224; Linch v. Dobson (1922) 108 Neb. 632 , 188 N. W. 227 , by the Supreme Court of Nebraska; Gates v. Mader (1925) 316 Ill. 313 . 147 N. E. 241 , by the Supreme Court of Illinois; Van Blaricom v. Dodgson (1917) 220 N. Y. 111 , 115- *667 N. E. 443, L. R. A. 1917F, 363, by the Court of Appeals of New York; Jones v. Cook (1924) 96 W. Va. 60 , 123 S. E. 407 , by the Supreme Court of West Virginia; Mores v. Garcia (Tex. Civ. App.) 226 S. W. 743 ; Berry on Automobiles, §§ 653, 660, 664, 665, 666, 667, 668, 673, 674. Whether the car is driven by the wife or some other member of the family makes no difference, in principle, in the application of the doctrine of principal and agent. The provision of article 4613, Rev. Statutes of 1925, that the separate property of the husband shall not be subject to the torts of the wife, has reference only to the marriage relation. It does not apply to the relation of principal and agent, and does not exempt his separate property from liability for a tort committed by the wife while acting as his agent and under his express authority. All other questions raised in the motion for rehearing have'been sufficiently disposed of in our former opinion, and we adhere to the conclusions there expressed. • Accordingly, the motion for rehearing is overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9831846. Public record. Not legal advice.