Burnett v. Burnett

• Decision Date: 12 November 1904
• Citation: 83 S.W. 238
• Parties: BURNETT v. BURNETT.
• Court: Texas Court of Appeals

83 S.W. 238

BURNETT v. BURNETT.

Court of Civil Appeals of Texas.

November 12, 1904.

Appeal from District Court, Grayson County; J. M. Pearson, Judge.

Action by Esther Burnett against Naud Burnett. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Sam. A. Leake, J. P. Leslie, and O. D. McReynolds, for appellant.

TALBOT, J.

This is an action by appellant against appellee for a divorce. It was alleged that appellant and appellee were legally married on or about the 7th day of April, 1902, in Dallas county Tex., and thereafter lived together as husband and wife until May 1, 1902. The grounds alleged for the divorce were cruel treatment, rendering their living together insupportable, in that the appellee had taken appellant to reside in the Island of Cuba, among people who were strangers to her, and who spoke a language which she did not understand; that he abandoned her there when she was about to give birth to a child, without warning, without friends, and without adequate funds to provide for her necessities. Appellee denied that he was ever married to appellant. A jury was demanded, and at the conclusion of the evidence the court instructed a verdict for appellee.

Appellant sought to establish a marriage with appellee by civil contract, or what is termed a "common-law marriage." The ground upon which the peremptory instruction was given requiring the jury to return a verdict in favor of appellee is not disclosed by the record, but we presume it was because the trial judge was of the opinion that the evidence was insufficient to support a verdict for appellant. That a marriage according to the common law is valid in this state, whether the statutory regulations on the subject have been observed or not, has been definitely settled. The general principles of law by which such a marriage is to be determined are exhaustively discussed and clearly set forth in the following authorities, viz.: Cumby v. Henderson, 6 Tex. Civ. App. 519, 25 S. W. 673; Ingersol v. McWillie (Tex. Civ. App.) 30 S. W. 56; Chapman v. Chapman (Tex. Civ. App.) 32 S. W. 564; Simmons v. Simmons (Tex. Civ. App.) 39 S. W. 639; Nixon v. Cattle Co. (Tex. Civ. App.) 84 Tex. 411, 19 S. W. 560; Cuneo v. De Cuneo (Tex. Civ. App.) 59 S. W. 284; Railway v. Cody (Tex. Civ. App.) 50 S. W. 136; Holder v. State (Tex. Civ. App.) 29 S. W. 793; Simon v. State (Tex. Cr. App.) 20 S. W. 399, 37 Am. St. Rep. 802; 1 Bish. Mar. & Div. §§ 262, 437, 439; Rodg. Dom. Rel. §§ 87-96; 2 Kent's Comm. 87; 2 Greenl. Ev. § 464. An attempt at further discussion of these principles would be superfluous.

The sole question for our determination is whether or not the evidence was sufficient to require the submission of the case to the jury. Appellant testified, in substance: That she first became acquainted with appellee in the fall of 1900. That he began visiting her regularly in May, 1901, and thereafter called two or three times a week until May, 1902. That in August, 1901, they became engaged, and were to be married when her school was out, in the following spring. That prior to their engagement she had never entertained any improper relation with him, but thereafter, on September 19, 1901, she yielded to his wishes because of his promise of marriage, and because of her affection for him, and had sexual intercourse with him. That appellee agreed at that time that in case pregnancy resulted from the improper relation they would be immediately married. That she had sexual intercourse with appellee at frequent intervals from that time on. That as a result of this improper relation she did become with child, which she discovered about Christmas. 1901. She told the appellee of her condition, and he took her to Denison, to consult a physician, who met them in Denison by appointment, coming from Greenville. That the defendant (appellee) afterward consulted the same physician regarding the same matter. A few days after this trip to Denison appellant had reason to think that she had had a miscarriage, but in March, 1902, ascertained that in this she had been mistaken. That on April 6, 1902, she went to the depot, where appellee met her, and accompanied her to Denison. "He said that we would go to Dallas, and see if we could have an abortion performed, and, if not, we would go to Cuba as husband and wife, married." That the appellee gave her $150 in money, and she went to Dallas via the Katy, arriving there about 8 p. m. That the next morning she consulted a physician, who discouraged the undertaking, of which she advised the appellee by phone, requesting him to come down to Dallas the following morning. That the appellee came to Dallas the following morning, and when he arrived at the hotel she was in her room. The porter brought him up, and he and appellant went to the parlor. That she then again told him what the doctor had said, and asked him to see the doctor if he wanted to, but he said he would take her word for it. "That there was nothing to do but to carry out our previous arrangements, and go to Cuba," and that they then and there agreed to go as man and wife, and live in Cuba, which they did. She further testified: That the appellee, before returning to Sherman, bought her a ticket to Shreveport, La., and told her to go to Shreveport, register at the best hotel as Mrs. J. C. James, and write him a note, telling him where she was stopping, leaving same with the ticket agent at the depot. That she went to the Phœnix Hotel in Shreveport, registered as he had instructed her, and advised him of her stopping place, as he had instructed her. That the defendant, after he left her at Dallas, came to Sherman, arranged to get $250 at Greenville, then met her at the Phœnix Hotel at Shreveport, where he registered as J. C. James, and occupied the same room with her. That when the appellee arrived in Shreveport the hotel was crowded, and the clerk told him he could not get a room, when appellee said, "Of course you can, my wife is here," of which circumstance the appellee afterward told her. That, after leaving Shreveport, they went to New Orleans, stopped at the Denechaud and Ozmand Hotels, as husband and wife. That at each of these places the appellee registered in that way for both of them. From Wednesday until Saturday they so remained in New Orleans, and then took passage to Cuba on the steamship Excelsior. On the steamship they occupied the same stateroom. Their tickets, which were purchased by the appellee, were in the name of Mr. and Mrs. J. C. James. On the ship appellee represented her to the officers of the boat, the passengers, and others with whom they were associated as his wife. After they arrived in Havana they stopped at the Florida Hotel, where they also lived as husband and wife, the appellee so representing her as his wife. That he introduced her to the quarantine officers as his wife at Havana. Appellee then went to Nuevetas, Cuba, and on the day following his arrival sent her a telegram, which was read in evidence, as follows: "Nuevetas, April 24th. Mrs. J. C. James, Havana, Cuba: I arrived all O. K. Come on next boat. Will meet you, answer. J. C. James" — pursuant to which she went to him in Nuevetas. Afterward they returned to Havana, and appellee said that on account of the agitated condition of the country it was best for him to return to the United States, because he could not make a living in Cuba. That she told him that it was hazardous for her to travel in her condition, and they arranged for her to stay until after the baby was born. In the meantime he was to come to Sherman, sell out his business, and then go to some place, and she...