Burnett v. Cobb

• Decision Date: 21 May 1924
• Docket Number: (No. 2337.)
• Parties: BURNETT v. COBB.
• Court: Texas Court of Appeals

262 S.W. 826

BURNETT v. COBB.

(No. 2337.)

Court of Civil Appeals of Texas. Amarillo.

May 21, 1924.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Action by Mattie Cobb against T. L. Burnett. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

McLean, Scott & Sayers and Bullington, Boone, Humphrey & Hoffman, all of Fort Worth, and John Murphee, of Iowa Park, for appellant.

Davenport, Cummings & Thornton, of Wichita Falls, for appellee.

BOYCE, J.

Mrs. Mattie Cobb brought this suit against T. L. Burnett, to recover damages for the alienation of the affections of her husband, J. J. Cobb, resulting in their separation and divorce. It was alleged that Lucile Burnett, wife of T. L. Burnett, by blandishment and solicitation of intimate and improper association with J. J. Cobb. caused him to lose his affections for the plaintiff and to transfer them to herself. It was also alleged that T. L. Burnett aided and encouraged Lucile Burnett in her wrong. A trial resulted in judgment for the plaintiff.

Some objection is made to the sufficiency of appellant's brief. Without discussing these objections in detail we may say that we think the brief is sufficient to require a consideration of the following questions, a determination of which is sufficient to dispose of all the propositions presented:

(1) Whether the plaintiff may legally maintain this suit for damages for the alienation of her husband's affections. (2) Whether the record sustains the judgment on the theory that appellant is a joint tort-feasor with Lucile Burnett, participating in her wrong in such a way as to render him liable, independent of the relation of husband and wife. (3) Whether appellant is liable in this suit for the tort of his wife, Lucile Burnett, in the absence of such participation therein as would render him liable as an independent or joint tort-feasor.

We will discuss these questions in the order stated.

1. While there are a few authorities to the contrary, the overwhelming weight of modern authority is to the effect that the wife, under laws similar to those of this state, may now maintain a suit such as is here prosecuted. Nolin v. Pearson, 191 Mass. 283, 77 N. E. 890, 4 L. R. A. (N. S.) 643, and notes, 114 Am. St. Rep. 605. 6 Ann. Cas. 658; Sims v. Sims, 79 N. J. Law, 577, 76 Atl. 1063, 29 L. R. A; (N. S.) 842, and notes; Weber v. Weber, 113 Ark. 471, 169 S. W. 318, L. R. A. 1915A, 67, Ann. Cas. 1918C, 743; Speer's Law of Marital Rights, §§ 94 and 95; Nickerson v. Nickerson, 65 Tex. 281. While the very fact case has not been decided in this state, the decision in the case of Nickerson v. Nickerson, supra, is based on analogous facts and when read in connection with the authorities above cited leaves no ground for serious question as to the plaintiff's right to maintain this suit.

2. A discussion of the second question calls for some further statement of the record which we here make, as follows: The plaintiff in her petition, after statements as to her marriage to J. J. Cobb and their subsequent living together happily, the marriage of T. L. Burnett and Lucile Burnett, and their living together during the time of the commission of the wrong against plaintiff, the alienation of J. J. Cobb's affections for the plaintiff by the said Lucile Burnett, "with evil design and intent," alleged, further, that such action of Lucile Burnett was done "with the aid and encouragement of the defendant, T. L. Burnett." In this connection it was specifically alleged that Lucile Burnett was a woman of impure life before and after her marriage to defendant, and such fact was known to him; that defendant permitted and encouraged association between Lucile Burnett and plaintiff's husband; that he furnished whisky, which was drunk together by plaintiff's husband and Lucile Burnett and others, and that at times the defendant himself participated in these drinking parties; that he furnished J. J. Cobb a key to the locker in which the whisky was kept so that he could have ready access to the same, and generally that T. L. Burnett "participated in the wrongful acts and conduct of the said Lucile Burnett, which resulted in the alienation from the plaintiff of the affections of her said husband." Defendant admitted that he knew that Lucile Burnett was a woman of impure life before his marriage with her, though he testified that he thought up until the time of his separation from her that she was true to him after the marriage. He and Lucile Burnett lived on his ranch. J. J. Cobb was his foreman and the two families lived in separate houses on the ranch. Defendant admitted that he kept whisky in a locker at his home and that he sometimes drank with his wife and Cobb and others. He testified that he was trying to keep his wife from drinking too much and gave the key to the locker to Cobb so that she could not have as ready access to the whisky. The evidence shows such constant association between Cobb and Lucile Burnett as that it excited comment and aroused suspicion on the part of the other employees on the ranch, as well as the plaintiff. The defendant denies knowledge of most of this association and the evidence shows that part of it at least was clandestine. The evidence does show that on one occasion at least the appellant permitted his wife to accompany Cobb in his automobile on a trip to another part of the ranch and that on several occasions Cobb came with his wife in an automobile to meet the defendant when he was coming in on the train at night. Defendant also knew that on occasions his wife permitted and invited his cowboy employees to kiss her. His version of this was that this was done in open, comradely greeting or sport, and "he thought nothing of it." When he was finally informed by plaintiff of his wife's infidelity, he attacked Cobb and engaged in a personal difficulty with him and discharged him from the ranch. He also separated from Lucile Burnett and secured a divorce from her. The jury found in response to special issues that Lucile Burnett maintained "improper intimate association with J. J. Cobb, with intent on the part of said Lucile Burnett to alienate the affections of the said J. J. Cobb from the plaintiff." An issue was submitted which called for a finding as to whether the defendant, T. L. Burnett, "aided or encouraged said association between the said Lucile Burnett and J. J. Cobb." The jury did not answer this issue, and the court, upon request of the jury, submitted two issues instead: One, whether the defendant aided in the improper association of his wife and Cobb, which the jury answered, "Yes;" and the other, whether the defendant encouraged such improper association, which the jury answered, "No."

Malicious intent is an essential element of the tort here sued on. Geromini v. Brunelle, 214 Mass. 492, 102 N. E. 67, 46 L. R. A. (N. S.) 465, and notes; Barton v. Barton, 119 Mo. App. 507, 94 S. W. 574, 582; Briles v. Briles, 66 Ind. App. 444, 112 N. E. 449; Heisler v. Heisler, 151 Iowa, 503, 131 N. W. 676, 13 R. C. L. p. 1466, § 515. It is said in the Missouri case cited that—

"The case is for an intentional and not a negligent tort; one in which each defendant must have designed to cause the resultant mischief."

Appellant was charged with liability on the ground of aid and encouragement in his wife's wicked design; in other words, as a a joint tort-feasor.

"Joint tort-feasors are held responsible, not because of any relationship existing between them, but because of the concerted action towards a common end. * * * All persons who aid, counsel, direct or join in committing a tort are joint tort-feasors. The liability of a joint tort-feasor may attach by direct participation * * * or the liability may arise out of counsel, direction or command by one to another to commit a tort. The liability here, however does not arise out of mere relationship. But a person who merely gives leave for a tort to be committed is said not to be a joint tortfeasor. * * * Mere presence at the commission of a wrong, as an assault, does not attach liability as principal; but encouraging, inciting and even presence without disapproval, in connection with other circumstances, may have that effect." Jaggard on Torts, vol. 1, pp. 210, 211.

"It is the established rule that, in the absence of a common design and concert of action on the part of defendants each defendant is responsible for his own acts, and is in no degree responsible for the acts of the others or the damage caused by them." Citizens' Railway & Light Co. v. Atwood (Tex. Civ. App.) 138 S. W. 1102.

If design be an essential element of this tort it follows that before T. L. Burnett could be held responsible as a joint tort-feasor with Lucile Burnett, it should appear that the acts which he did, and which are charged as being aids in the accomplishment of Lucile Burnett's purpose, were done with such design or with knowledge of the purpose of Lucile Burnett. If such acts were merely aids, unwittingly furnished, there would be no liability. Claxton v. Pool (Mo. Sup.) 197 S. W. 349, 352 (4), L. R. A....