Bounds v. Caudle

• Decision Date: 29 December 1980
• Docket Number: No. 1666,1666
• Citation: 611 S.W.2d 685
• Parties: Lloyd D. BOUNDS, Appellant, v. Kerry Tyrone CAUDLE et al., Appellees.
• Court: Texas Court of Appeals

Page 685

611 S.W.2d 685

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

No. 1666.

Court of Civil Appeals of Texas, Corpus Christi.

Dec. 29, 1980.

Rehearing Denied Jan. 22, 1981.

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

James P. Ryan, Wood & Burney, 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. This is the retrial of both suits under the instructions of the Texas Supreme Court in Bounds v. Caudle, 560 S.W.2d 925 (Tex.1977). The Supreme Court in the first trial abolished the doctrine of interspousal tort immunity to the extent that the doctrine would no longer apply in cases involving the commission of an intentional tort by one spouse against the other. The Court further ruled that the trial court had erred in certain procedural aspects of the trial.

This cause of action arose as a result of the death of Robbie Morris Caudle Bounds by gunshot. Appellant Dr. L. D. Bounds, was the husband of the deceased at the time of the shooting. Trial was before a jury which found the following: (1) that L. D. Bounds shot and killed Robbie M. Bounds; (2) that such shooting was intentional; (3) that such shooting was wrongful; (4) that appellees were entitled to actual damages in the amount of $25,000.00 for Kerry Caudle and $50,000.00 for Cheryl Caudle; and (5) that appellees were entitled to exemplary damages in the amount of $75,000.00 each. The court rendered judgments in accordance with the jury findings. Dr. L. D. Bounds appeals from both judgments.

Robbie M. Bounds and Dr. Bounds were married in 1962. No children were born to them during their marriage of nearly nine years; however, each of them had two children by prior marriages. Their marriage contained much discord and even some physical abuse. On the night of the shooting, Robbie M. Bounds and Dr. Bounds had been arguing extensively when a revolver was brandished. During the altercation, Robbie M. Bounds was shot twice and died almost immediately. There is conflicting evidence in the trial court as to whether Dr. Bounds intentionally shot Robbie Bounds or whether she was unintentionally shot while he was attempting to wrest the revolver from her grasp.

Appellant has brought forward nine points of error. For discussion purposes, we have grouped appellant's nine interrelated points into three areas.

Appellant first contends, in points of error one and two, that the trial court erred in submitting an issue inquiring as to whether or not the shooting was intentional for the reason that such issue was not an ultimate issue. We disagree.

The Supreme Court in the first trial of this case abolished the doctrine of interspousal tort immunity to the extent that it would no longer bar claims for intentional torts committed between spouses. Bounds v. Caudle, 560 S.W.2d 925 (Tex.1977). Subsequent cases under this doctrine have held that Texas does not permit spouses to recover from each other for negligently inflicted injuries. Therefore, the doctrine of interspousal tort immunity will be applied unless an intentional tort has been committed. Robertson v. Estate of McKnight, 591 S.W.2d 639 (Tex.Civ.App. Tyler 1979), rev'd on other grounds, 609 S.W.2d 534 (Tex.1980); Bruno v. Bruno, 589 S.W.2d 179 (Tex.Civ.App. Waco 1979, writ ref'd n.r.e.). Accordingly, in order for appellees to recover against appellant for the wrongful death of their mother it was necessary for them to establish that their cause of action was based on an intentional tort, thereby bringing them within the exception of the interspousal tort immunity doctrine. We hold that a finding by the jury that the shooting was intentional was a necessary prerequisite to appellees' cause of action and hence an ultimate issue. An ultimate issue is one that is essential to a right of action and a trial court is under a duty to submit such ultimate issues. Wichita Falls and Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940); Perales v. Braslau's Furniture Company, 493 S.W.2d 638 (Tex.Civ.App. Corpus Christi 1973, writ ref'd n.r.e.). Appellant's points of error one and two are overruled.

Appellant, in the alternative, contends in points of error three, four, five, six and seven that if special issue number two was properly submitted then the trial court erred in refusing to grant his requested instructions on self defense and accident. Rule 279, T.R.C.P. reads:

"... Failure to submit a definition or explanatory instruction shall not be...