## Facts

- A Houston Oxygen Company truck driven by employee Oliver O. Stanbury collided with an automobile in which minor Charles Applebhy was a passenger, injuring him.
- Pearl Davis, Charles’s mother, sued Houston Oxygen Company and Stanbury for (1) her own damages and (2) Charles’s personal-injury damages as his next friend; she was joined by her current husband, Johnie Davis.
- Charles’s natural father was alive, divorced from Pearl, and under a legal duty to support Charles, but was not joined; the pleadings did not address the father’s status or rights.
- A jury awarded $4,000 to Pearl Davis and $16,000 to Charles, and the trial court entered judgment on the verdict.
- The judgment directed that one-half of Charles’s recovery be paid as attorney’s fees and the remainder deposited for the minor; the intermediate court disapproved the fee directive but otherwise affirmed.
- At trial, defendants offered testimony that, immediately after the Plymouth car carrying Charles sped past a witness, the witness’s companion stated the occupants “must have been drunk” and predicted they would be found wrecked; the trial court excluded the statement as hearsay.

## Issues

1. Whether the minor’s living natural father, with an ongoing duty of support and absent any pleadings or proof of forfeiture of rights, was a necessary party to an action seeking damages for the minor’s personal injuries.
2. Whether the mother could maintain the minor’s injury action alone as next friend without pleading and proving that the father had no remaining interest in the child’s welfare.
3. Whether, when multiple recoveries arise from the same alleged negligence and depend on the same evidence, an appellate court may affirm part of the judgment despite non-joinder of a necessary party.
4. Whether the excluded remark about the car’s speed and occupants’ condition was admissible as a spontaneous declaration rather than hearsay.

## Decision

- The Supreme Court of Texas reversed the judgment and remanded for a new trial.
- The Court held the minor’s natural father was a necessary party because he was alive, owed a duty of support, and the record lacked pleadings or proof that he had lost or relinquished his parental interest.
- The Court held it was error to affirm any portion of the judgment where the claims arose from the same acts of negligence and the recoveries depended on the same evidence, given the missing necessary party.
- The Court held the excluded remark was admissible as a spontaneous declaration sufficiently contemporaneous to dispel concern that it was manufactured.

## Legal Principles

- Ordinarily, the father of a minor child is the proper person to bring suit for damages for the child’s personal injuries during minority.
- When a mother sues alone for a minor’s injury, there must be both pleading and proof that the father no longer has an interest in the child’s welfare; otherwise, the father is a necessary party.
- When distinct causes of action arise from the same negligent conduct and depend on the same evidence, discovery on appeal that a necessary party was not joined requires reversal and remand of the entire case, not partial affirmance.
- A contemporaneous, unprompted statement describing observed speed or apparent intoxication closely connected to the event may be admissible as a spontaneous declaration despite the hearsay rule.

## Conclusion

The court ordered a new trial because the minor’s living father—whose continuing support obligation gave him a legally protected interest in the litigation—was not joined and no pleadings or proof justified his absence; the court also instructed that a near-contemporaneous remark about the vehicle’s speed and occupants’ condition should be admitted as a spontaneous declaration on retrial.


Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474 (Tex. 1942)