Bounds v. Caudle

• Decision Date: 31 March 1977
• Docket Number: No. 1115,1115
• Citation: 549 S.W.2d 438
• Parties: L. D. BOUNDS, Appellant, v. Kerry Tyrone CAUDLE et al., Appellees.
• Court: Texas Court of Appeals

Page 438

549 S.W.2d 438

L. D. BOUNDS, Appellant, v. Kerry Tyrone CAUDLE et al., Appellees.

No. 1115.

Court of Civil Appeals of Texas, Corpus Christi.

March 31, 1977.

Rehearing Denied April 20, 1977.

Second Motion for Rehearing Denied May 12, 1977.

Lee Mahoney, Mahoney, Shaffer, Hatch & Layton, Corpus Christi, for appellant.

James P. Ryan, Wood, Burney, Nesbitt & Ryan, Corpus Christi, for appellees.

OPINION

YOUNG, Justice.

This is an appeal from two separate judgments resulting from a consolidated jury trial of a probate proceeding and a tort action. These suits arose from the death by gun shot on March 1, 1971, of Robbie Bounds. The children of Mrs. Bounds alleged that their stepfather, Dr. L. D. Bounds, wrongfully caused that death.

Cause # 110,807-A in the trial court was an appeal from the judgment rendered by a county court at law of Nueces County, Texas, admitting the will (wherein Dr. Bounds was designated primary beneficiary and independent executor) of Robbie Morris Caudle Bounds to probate. Cause # 115,954-B was an original suit in a district court (the trial court) by Cheryl Kay Caudle and Kerry Tyrone Caudle for damages, both actual and exemplary; for recovery of proceeds under life insurance policies; and for imposition of a constructive trust on property passing under the will of Mrs. Bounds. A judgment in favor of the plaintiff-children was entered in each case. The defendant then perfected his appeal in each case. Thereafter this court ordered consolidation of the cases for purposes of appeal.

The parties tried the cases to a jury which found: (1) that Dr. Bounds shot and killed Mrs. Bounds; (2) that the shooting and killing was intentional; (3) that the shooting and killing was wrongful; (4) actual damages of $10,000.00 for Kerry and $25,000.00 for Cheryl; (5) exemplary damages of $25,000.00 for Kerry and $25,000.00 for Cheryl.

Based upon that verdict, the undisputed evidence, and the stipulation of the parties, the trial court rendered judgment in the probate matter that the will of Mrs. Bounds be admitted to probate and that Dr. Bounds be declared disqualified to serve as independent executor of the estate of Mrs. Bounds. Further, the trial court rendered judgment in favor of Kerry and Cheryl in the other case, the tort case, declaring a constructive trust in favor of Kerry and Cheryl and vesting title to them to the extent of 25% each in all the community property (listed in the judgment) of Dr. and Mrs. Bounds; for all the damages to each, both actual and exemplary, awarded by the jury; for one-half each of the insurance proceeds; and for funeral expenses. Dr. Bounds appeals from both judgments.

Robbie Caudle and Dr. Bounds were married May 18, 1962. Each of them had been married once before and each of them had two children by their respective prior marriages. No children were born to them during their nearly nine years of marriage. Their marriage contained much discord with attendant arguing and actual fighting. On the night of the shooting, the parties had been to the Embers Club with friends for dining and drinking. While there they began an argument which continued until they left to go home, on the way home and after they arrived at home. Soon after their arrival at home, where only she and he were present, a revolver was brandished, Mrs. Bounds was shot twice, and she died almost immediately. The evidence is conflicting about whether Dr. Bounds shot her intentionally or whether she was shot while he was attempting to wrest the revolver from her grasp. Following the death, appellant was indicted for murder, but was convicted only of negligent homicide in the first degree, a misdemeanor.

Appellant has brought forward 21 points of error. We have grouped for discussion many of the appellant's contentions because several of his contentions are threaded throughout several of his points and sub-points.

This brings us to the appellant's assertion in points 2(1), (2), 12, 13, 15(5), (6) and (7) that as a matter of law Kerry and Cheryl are not entitled to recover as Mrs. Bounds' only surviving heirs at law under Tex.Rev.Civ.Stat.Ann. art. 4671 et seq., for actual and exemplary damages. As we have noted the appellees had pleaded and recovered under Article 4671, et seq., against the appellant for their damages for wrongful death on the theory that the appellant wrongfully killed their mother. Under the prevailing law of this state we hold that these statutory beneficiaries, the appellees, have no cause of action for damages and that part of the tort judgment must be reversed and rendered. The reasons for this result were ably pointed out in Donsbach v. Offield, 488 S.W.2d 494 (Tex.Civ.App. Austin 1972, no writ). And in our discussion here, we have borrowed liberally from the reasoning and phrasing set out in Donsbach.

As in Donsbach, the denial to the appellees of their damages is made necessary by Article 4672 in connection with the doctrine of interspousal tort immunity. This article denies the beneficiaries a death action unless the deceased would have had a cause of action to recover for personal injuries had he or she survived the damaging event. In our case had Robbie Bounds survived the shooting, she would have been denied an action against Dr. Bounds under the well established doctrine of interspousal immunity. Nickerson and Matson v. Nickerson, 65 Tex. 281 (1886). The victim's disability extends also to the beneficiaries through Article 4672, and the beneficiaries are also precluded. Childs v. Childs, 107 S.W.2d 703 (Tex.Civ.App. Beaumont 1937, no writ); Wilson v. Brown, 154 S.W. 322 (Tex.Civ.App. Austin 1913, writ ref'd).

Again as explained in Donsbach, the doctrine of interspousal tort immunity is well entrenched in our jurisprudence, rightly or wrongly. This is true whether the tort was negligent or intentional. Turner v. Turner, 385 S.W.2d 230 (Tex.Sup.1965); Nickerson and Matson v. Nickerson, supra; McGlothlin v. McGlothlin, 476 S.W.2d 333 (Tex.Civ.App. San Antonio 1972, writ ref'd n.r.e.); Lunt v. Lunt, 121 S.W.2d 445 (Tex.Civ.App. El Paso 1938, writ dism'd). See Comment: Intra Family Immunity The Doctrine and Its Present Status, 20 Baylor L.Rev. 27 (1968), for criticism of the doctrine of interspousal immunity. Therefore, the wrongful death and interspousal contentions in his points 2(1), (2), 12, 13, 15(5), (6) and (7) of the appellant are sustained.

In his points 2(3), (4), 7, 15(1), (2) and (3), the appellant argues that because he has not been sentenced and convicted as a principal or accomplice in willfully bringing about the death of Mrs. Bounds, as required by Tex.Prob.Code Ann. 41(d) and Tex.Ins. Code Ann. § 21.23, the appellees are not entitled: to impose a constructive trust on property passing under her will; to receive the proceeds of life insurance policies on her life.

As we have noted, the only showing in the record of any conviction and sentencing of Dr. Bounds is in connection with the charge of negligent homicide in the first degree. Nevertheless, we disagree with the appellant's foregoing position about the necessity of conviction and sentencing.

We again point out that the jury in our case found that Dr. Bounds both "intentionally" and "wrongfully" killed Mrs. Bounds. Article 21.23 of the Insurance Code calls for forfeiture of the beneficiary's interest where the beneficiary (Dr. Bounds) is the "principal or an accomplice in willfully bringing about the death of the insured." "Willfully" as used in Article 21.23 has been defined by our Supreme Court as ". . . where the beneficiary intends to kill the insured and the killing is illegal . . . , even though the killing was done under the immediate influence of sudden and violent passion from an adequate case." Greer v. Franklin Life Ins. Co., 148 Tex. 166, 221 S.W.2d 857 (1949). Therefore, because the jury found an "intentional" and a "wrongful" killing by Dr. Bounds, we uphold the appellees' recovery of insurance proceeds even though Dr. Bounds has not been "convicted" or "sentenced" for a willful killing.

Appellant urges a similar contention in his constructive trust complaints based on the following language of the Probate Code.

"(d) Convicted Persons and Suicides. No conviction shall work corruption of blood or forfeiture of estate, except in the case of a beneficiary in a life insurance policy or contract who is convicted and sentenced as a principal or accomplice in wilfully bringing about the death of the insured, in which case the proceeds of such insurance policy or contract shall be paid as provided in the Insurance Code of this State, as same now exists or is hereafter amended; nor shall there be any forfeiture by reason of death by casualty; and the estates of those who destroy their own lives shall descend or vest as in the case of natural death."

Regardless of the above language about "convicted", "sentenced", and "casualty", the courts of this State have adopted the modern view that the law will impose a constructive trust upon the property of a deceased which passed either by inheritance or by will if there is sufficient proof to sustain an allegation that the beneficiary willfully and unlawfully caused the death of the deceased. Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559 (1948); Parks v. Dumas, 321 S.W.2d 653 (Tex.Civ.App. Fort Worth 1959, no writ); Pritchett v. Henry, 287 S.W.2d 546 (Tex.Civ.App. Beaumont 1955, writ dism'd). Therefore, in view of the jury findings we noted above, appellant's constructive trust contentions are also overruled. Appellant's points 2(3),(4), 7, 15(1), (2) and (3) are overruled.

In appellant's point 1, he attacks the propriety of the trial court's consolidation for trial of the probate case and the tort case. He says the causes are so dissimilar that he has been prejudiced by the joint trial.

It is well settled law that the trial court has broad discretion in the consolidation and severance of causes of action. It is also established...