Bobbitt v. Bobbitt

• Decision Date: 12 May 1920
• Docket Number: (No. 1662.)
• Citation: 223 S.W. 478
• Parties: BOBBITT v. BOBBITT.
• Court: Texas Court of Appeals

223 S.W. 478

BOBBITT v. BOBBITT.

(No. 1662.)

Court of Civil Appeals of Texas. Amarillo.

May 12, 1920.

On Motion for Rehearing, June 16, 1920.

Appeal from District Court, Grayson County; Silas Hare, Judge.

Suit by Mary Green Bobbitt against Israel R. Bobbitt. From a judgment granting plaintiff a divorce and decreeing partition of property and appointing commissioners therefor, the defendant appeals. Affirmed.

Head, Dillard, Smith, Maxey & Head and Wolfe & Freeman, all of Sherman, for appellant.

Wood, Jones & Hassell, of Sherman, and M. W. Reily, of Meridian, Miss., for appellee.

BOYCE, J.

The appellee brought this suit against the appellant for divorce and partition of property alleged to belong to the community. She alleged in her petition that on the 25th day of May, 1886, she and the defendant entered into a mutual agreement whereby they agreed to become husband and wife; that such agreement was consummated by the said parties living together as husband and wife for a period of about 30 years; that during such time they accumulated a large amount of property of the approximate value $500,000; that in March, 1916, the defendant abandoned her and married another woman. Since the issue in the case was not as to plaintiff's right to a divorce, but as to whether there was ever any valid marriage between her and the defendant, it will not be necessary to make any further statement of the grounds set up for divorce. Plaintiff further alleged that she entered into such marriage agreement and relation in good faith, and believed that the defendant in good faith took her to be his wife; that, if the agreement was not mutual, it was procured by the fraud of the defendant; and that, as his putative wife, she was entitled to one-half of the accumulations of their joint efforts. Plaintiff also alleged that, if it should be found that there was no valid marriage between her and the defendant, and that she was not entitled to one-half of such property as defendant's putative wife, she was, nevertheless, entitled to one-half of said property under an agreement between them that all property acquired by their joint efforts should be owned by them jointly, it being alleged in this connection that the plaintiff's labors were equally instrumental with the defendant's in the production of said property. The defendant answered by a general denial and plea of limitations. In response to special issues submitted the jury found that the plaintiff and defendant entered into a "common-law marriage," as that term was defined by the court, in Grayson county, Tex., about May 25, 1886; that while living together as husband and wife the plaintiff and defendant accumulated property of the value of $424,100; that the plaintiff and defendant agreed to work together to a common purpose, the proceeds of their labor to become the joint property of the two, and that under this agreement property of the present value of $424,100 was acquired, and that 50 per cent. thereof represents the value of plaintiff's labor contributed to the acquisition thereof; that the plaintiff and the defendant cohabited as husband and wife from May 25, 1886, to March, 1916. Judgment was entered granting plaintiff a divorce and decreeing partition of said property, to effect which commissioners to partition were appointed.

A large part of appellant's brief is in support of his claim that the finding of the jury that a common-law marriage between the plaintiff and the defendant was entered into and consummated in Texas is manifestly wrong and should be set aside. The statement of the evidence introduced on this issue fills more than 500 typewritten pages in the statement of facts. We will state the result of this evidence only in a very general way, but at sufficient length that the reasons for our conclusion may appear.

It is not disputed that during practically all the time from May, 1886, to March, 1916, the plaintiff and defendant lived and cohabited together. The plaintiff maintains that this relation was preceded by an agreement to live together as husband and wife, and this agreement was immediately followed and consummated by the said parties living together in such status and continuing in such relation throughout said period of time, so as to constitute the relation a common-law marriage within the decision of the Supreme Court in the case of Grigsby v. Reib, 105 Tex. 608, 153 S. W. 1124, L. R. A. 1915E, 1, Ann. Cas. 1915C, 1011.

The defendant, on the other hand, contends that the relation in its inception was meretricious and continued so at all times while the parties were together in Texas; that, while there is sufficient evidence to justify the conclusion that the plaintiff and defendant did live together as husband and wife in other states, Louisiana, Mississippi, and Arkansas, a common-law marriage is not valid in such states, and the acts of the parties in such states cannot be taken as a consummation of an agreement of marriage without ceremony in Texas. We may say here parenthetically that the court instructed the jury that the testimony admitted as bearing upon the relations of the plaintiff and defendant in other states should be considered only for the purpose of assisting in determining whether the agreement which plaintiff testified was made preceding the beginning of their relations was in fact made, and whether the cohabitation in Texas was of such nature as to consummate a common-law marriage in this state. With this preliminary statement, we will proceed to state some of the concrete facts. For some time prior to May, 1886, both parties had been living near Farmington, in Grayson county, Tex. The plaintiff was about 19 years old at this time —a buxom, good-looking girl. She had been cooking and doing housework in families in this neighborhood and at Denison for several years before this. A great many witnesses testified that before this time the plaintiff's reputation for chastity was bad. The testimony is such that it may be assumed that the plaintiff practically conceded the truth of this evidence. It appears that both parties had little education; that of the plaintiff appearing to be the more limited. The defendant was 24 years old, and was a tenant farmer living to himself on his rented premises. The plaintiff testified that the defendant for some time prior to May, 1886, had been calling on her declaring his love; that on the night of May 25, 1886, defendant called to see her at her father's house; that they sat on the door steps, and the defendant asked her to be his wife; that he said it was not necessary for a marriage ceremony to be performed; "that we were already married when we agreed to be man and wife and live out our lives together"; that she loved the defendant, believed what he said, and went with him that night to his house on his farm and lived with him publicly from that time as his wife. The defendant's version of the beginning of their relations was that he employed plaintiff as a cook; that he did have illicit relations with her before and during the time she was cooking for him on the farm and ever afterwards while they were together, but that nothing was said about marriage between them or their relations being that of husband and wife. Plaintiff lived with the defendant on this farm from May, 1886, until November, 1887. She testified that during this time she was held out as defendant's wife. There was no other witness who testified that during such time she was introduced or referred to by the defendant as his wife, or that she claimed to be such. Plaintiff named four persons whom she had told that she was defendant's wife. One of these was dead. Two of the others appeared and denied her statement. These two witnesses were defendant's relatives. A great many witnesses testified that while the plaintiff and defendant were living together on the farm they were both regarded as single persons; that they never heard plaintiff referred to except as Mary Ann Green (her maiden name); that the defendant went to parties and dances with other girls and conducted himself as a single man; and that the neighborhood was much scandalized by the plaintiff and the defendant living together as they were. The defendant testified that the plaintiff was employed by him as a cook and housekeeper, and that was the only kind of work she did. The plaintiff testified, and in this she is corroborated by other witnesses, that in addition to cooking and doing housework, she did all kinds of work in the field. Bobbitt left the farm in 1887, and until some time in the year 1890 was at various places in Texas doing work of different kinds with teams, most of the time doing grading work on railway construction. Plaintiff spent short intervals of time with her parents as the defendant was changing locations and getting established in camp from time to time, but during practically all of this time she was with the defendant in these various camps. The plaintiff again testified that during this period of time she was known as defendant's wife; that they occupied the same tent; that she cooked, helped feed the teams, keep time of the laborers employed in the work, and in general assisted in handling the business and doing the work in which they were engaged. In this testimony she is corroborated in part by one witness and some circumstances which we shall presently state. The defendant testified that he employed plaintiff as a camp cook; that he paid her wages regularly like any other laborer; that her name was on the time books and payrolls kept by him; that she was known in camp as Mary Ann Green, occupied a separate tent from him; that she was a camp follower—a common prostitute; that she did not help keep the books, did not have education enough to do this, and assisted him in no way in his business except as camp cook. Defendant introduced the depositions of a great many witnesses who testified to practically the same facts. Most...