Bounds v. Caudle

Decision Date30 November 1977
Docket NumberNo. B-6792,B-6792
PartiesL. D. BOUNDS, Petitioner, v. Kerry Tyrone CAUDLE et al., Respondents.
CourtTexas Supreme Court

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

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

BARROW, Justice.

This is an appeal from two separate judgments resulting from a consolidated jury trial of an appeal from a probate proceeding and a tort action. The suits resulted from the death by gunshot of Mrs. Robbie Bounds. The children of Mrs. Bounds, Kerry Tyrone Caudle and Cheryl Kay Caudle, alleged and the jury found that their stepfather, Dr. L. D. Bounds, intentionally and wrongfully caused their mother's death. The trial court rendered judgment in the probate proceeding which admitted the will Robbie Caudle and Dr. Bounds were married in 1962. No children were born of this marriage; however, both had been married once before and each had two children by their prior marriages. The shooting ended a nine-year marriage marked by discord and even some physical abuse. On the night of March 1, 1971, Mrs. Bounds was shot twice and killed in the bedroom of the family home in Corpus Christi. Only the deceased and Dr. Bounds were present at the time of the shooting. The evidence is conflicting about whether Dr. Bounds intentionally shot her or whether she was unintentionally shot while he was attempting to wrest the revolver from her grasp. Dr. Bounds was indicted for murder, but was permitted to plead nolo contendere and, upon this plea, he was convicted of negligent homicide in the first degree, a misdemeanor.

                of Mrs. Bounds to probate, but disqualified Dr. Bounds to serve as Independent Executor of the estate.  Judgment was rendered in the tort action whereby a constructive trust in favor of the children was imposed on all of Mrs. Bounds' property which would have passed to Dr. Bounds under her will, and they were granted the proceeds of a life insurance policy on Mrs. Bounds' life payable to Dr. Bounds.  The two children were also awarded the damages found by the jury for their claim under Art. 4651 et seq.  1 for the wrongful death of their mother.  The court of civil appeals affirmed the judgment in the probate proceeding, and it upheld the imposition of the constructive trust and the award of the insurance proceeds.  It reversed and rendered a take-nothing judgment on the claim for wrongful death. 549 S.W.2d 438.  We reverse the judgments of the lower courts and remand the cause to the trial court for a new trial
                
CAUDLE APPLICATION

We granted the application of the Caudle children to consider whether or not the interspousal tort immunity doctrine should bar their claims which are based on a wilful or intentional tort. The children recognize that they cannot recover in the suit for wrongful death if Mrs. Bounds' cause of action, had she survived, is barred by the doctrine. See Tex.Rev.Civ.Stat.Ann. art. 4672. The doctrine of interspousal tort immunity was adopted in Texas in the case of Nickerson and Matson v. Nickerson, 65 Tex. 281 (1886), and was last considered and upheld by this Court in Turner v. Turner, 385 S.W.2d 230 (Tex.1965). It is urged that there has been such a great change in recent years in Texas laws regarding marital property and the nature of marital relationship that the doctrine is no longer valid for wilful or intentional torts.

The doctrine of interspousal tort immunity had its origin in the common law and is based on the legal fiction that the husband and wife became one person in law. Under this concept, married women lost their capacity to sue or be sued without the joinder of the husband. The wife's personal and property rights as well as her legal existence were considered suspended during the marriage. The husband acquired all of his wife's choses in action and could assert them in his own name, and he became liable for the torts of his wife. This concept necessarily made it impossible for one spouse to maintain an action against the other. Comment, Intrafamily Immunity, 20 Baylor Law Review 27 (1967).

At one time almost all jurisdictions adopted the rule that interspousal suits for personal torts were not permitted. In Nickerson and Matson v. Nickerson, it was held that torts inflicted upon the wife by her husband and another gave no right of action to the wife against her husband. The court said:

The rule at common law, that no action can be maintained by a wife for a tort committed upon her person by her husband, has been often said to rest upon their entire unity; but it would seem to In Turner v. Turner, this Court held that the husband had no right of action against his wife to recover for his attorney's fees incurred in defending an alienation of affections suit filed against the Turners by the wife of a friend. The Court said:

us to rest rather upon grounds of public policy.

The Nickerson case has been followed by many cases, and an examination of Shepard's Texas Citations discloses that the rules of law laid down as quoted above have never been questioned. See also Gowin v. Gowin, Tex.Civ.App., 264 S.W. 529, 1924, affirmed, Tex.Com.App., 292 S.W. 211, 1927; Latiolais v. Latiolais, 361 S.W.2d 252, 253, Tex.Civ.App.1962, writ ref. n. r. e.; 30 Tex.Jur.2d, p. 234, § 145.

There have been major changes in the laws defining the marital relationship since the Turner decision. The 1967 amendment to what was then Article 4615 (now Section 5.01(a)(3) of the Family Code) provided that a wife's recovery for personal injuries other than for loss of earning capacity is part of her separate estate. See Graham v. Franco, 488 S.W.2d 390, 396 (Tex.1972). Section 4.04 of the Family Code now permits a spouse to sue and be sued without the joinder of the other spouse. Under Section 5.21 of the Family Code the wife has the sole management, control and disposition of her separate estate. These changes invalidate the common law rationale for the doctrine, the fictional unity of the marriage relationship.

Nevertheless, we must determine if the doctrine should be maintained as a matter of public policy. We recognize fully the importance of the family unit in our society and that peace and tranquility in the home are endowed and inspired by higher authority than statutory enactments and court decisions. See Felderhoff v. Felderhoff, 473 S.W.2d 928, 933 (Tex.1971). However, we do not believe that suits for wilful or intentional torts would disrupt domestic tranquility. The peace and harmony of a home which has already been strained to the point where an intentional physical attack could take place will not be further impaired by allowing a suit to be brought to recover damages for the attack.

In recent years the interspousal tort immunity doctrine has come under severe attack from nearly all courts that have considered the doctrine. In 1955 the annotation, Action by One Spouse Against the Other, was published in 43 A.L.R.2d 632 and in Section 6 it listed 17 states which to some extent permitted one spouse to sue the other spouse for personal injuries. The supplements to this annotation show that there is now a clear majority of states which have abrogated the doctrine completely or limited its application. 2 The doctrine has also been subjected to severe criticism by most legal writers. See Speer, Marital Rights in Texas, § 317 (4th ed. 1961) and Prosser, Law of Torts, § 122 (4th ed. 1971). Although most authorities recognize a distinction between a claim based on a negligent act and one based on an intentional tort, all agree that there is no sound basis for barring a suit for an intentional tort. We concur and accordingly we abolish the rule established in Nickerson to the extent that it would bar all claims for wilful or intentional torts. This holding shall be applicable only in the present case and in similar cases in which the tort occurred on or after March 1, 1971, the date Mrs. Bounds was shot. The children of Mrs. Bounds are not barred from asserting a claim for damages against Dr. Bounds for the wrongful death of their mother.

BOUNDS APPLICATION

The application of Dr. Bounds urges that there is no legal basis to support the imposition of the constructive trust or the forfeiture of the life insurance proceeds. He also asserts that there were several procedural Dr. Bounds contends that before a constructive trust can be imposed there must be a conviction and sentence for wilfully bringing about the death of the insured. He urges that since he was convicted only of the offense of negligent homicide, a constructive trust should not have been imposed. This contention is largely based on Sec. 41(d) of the Probate Code which provides in part:

errors in the trial of the case which require a reversal of the judgment.

Convicted Persons and Suicide. 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; . . . (Emphasis added)

Dr. Bounds asserts the Probate Code takes precedence over Art. 21.23 of the Insurance Code which provides:

The interest of a beneficiary in a life insurance policy or contract heretofore or hereafter issued shall be forfeited when the beneficiary is the principal or an accomplice in willfully bringing about the death of the insured. When such is the case, the nearest relative of the insured shall receive such insurance. (Emphasis added)

Although the conviction for negligent homicide implies that the killing was committed without intent, it is settled law that the judgment in the criminal case was not binding upon the court in the civil proceeding....

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