Bain v. Bain

• Decision Date: 08 May 1923
• Docket Number: (No. 964.)
• Citation: 252 S.W. 252
• Parties: BAIN v. BAIN.
• Court: Texas Court of Appeals

Page 252

252 S.W. 252

BAIN v. BAIN.

(No. 964.)

Court of Civil Appeals of Texas. Beaumont.

May 8, 1923.

Appeal from District Court, Henderson County; W. R. Bishop, Judge.

Suit for divorce by Jim Bain against M. A. J. Bain. Decree for plaintiff, and defendant appeals. Reversed and remanded.

Miller & Miller, of Athens, for appellant.

W. D. Justice, of Athens, for appellee.

HIGHTOWER, C. J.

The appellee, Jim Bain, sued his wife, the appellant, for divorce, in the district court of Henderson county, alleging as his grounds three years' abandonment, and, generally, that she was guilty of such treatment and conduct as rendered their further living together insupportable. The appellant answered by general demurrer and general denial. Judgment was in favor of the husband for divorce, and the wife has appealed, claiming that the evidence adduced upon the trial was wholly insufficient to warrant the decree.

We shall first dispose of the claim of abandonment. The parties were married in July, 1916. Jim testified that the separation took place on May 10, 1918, and that he had not lived with his wife since that date. He testified that when he came home one evening he found that his wife had moved his "things" out of her house and put them in his house, and that she told him that he "would better get on over there, too." The evidence shows that Jim owned a place about one-half mile from his wife's place, where they were living at the time this occurred. Jim said that he went right on over to his place, and never lived with his wife again, and that he would go to the penitentiary before he would do so any more. This was all denied by Jim's wife, whose testimony shows that she continued to live with Jim whenever he would let her, but that most of the time Jim kept the house locked so that she could not get in, and on this point the wife was materially corroborated by others. But, even without such corroboration, the evidence was wholly insufficient to show three years' abandonment. Jim's own testimony did not raise the issue. His testimony shows, clearly, that he did not want his wife to live with him, and that he would rather go to the penitentiary than to live with her. Therefore, even if he had not kept her away from him by keeping her locked out, her living apart was not only with his consent, but was also to his delight, and he would not have had it otherwise. Clearly this did not constitute abandonment on the part of the wife in contemplation of article 4631, Revised Statutes. This statute provides that a husband shall be entitled to a divorce when it is shown that his wife has voluntarily left his bed and board for a space of three years, with the intention of abandonment. In construing this statute our Supreme Court many years ago held that, in order to constitute the voluntary separation, with the intention of abandonment, which the statute contemplates, it must be proved that the plaintiff neither caused, procured, nor consented to the separation. McGowen v. McGowen, 52 Tex. 658; Hannig v. Hannig (Tex. Civ. App.) 24 S. W. 696.

We are not unmindful, however, that it has been held in this state (and we agree with the holding) that the conduct of an offending spouse may be of such outrageous nature that the other would be justified in not objecting to a separation. Wright v. Wright (Tex. Civ. App.) 143 S. W. 720. But there is nothing in this record showing that the appellant was guilty of conduct of such character as would justify the appellee in agreeing to the separation and...