Collora v. Navarro

• Decision Date: 29 November 1978
• Docket Number: No. B-7622,B-7622
• Parties: Ollie B. COLLORA, Petitioner, v. Franklin R. NAVARRO, Respondent.
• Court: Texas Supreme Court

Page 65

574 S.W.2d 65

Ollie B. COLLORA, Petitioner, v. Franklin R. NAVARRO, Respondent.

No. B-7622.

Supreme Court of Texas.

Nov. 29, 1978.

Houston C. Munson, Jr., Gonzales, for petitioner.

Don Blansitt, Schulenburg, for intervenors.

Michael W. Melton, Schlanger, Cook, Cohn & Mills, Joel W. Cook, Houston, for respondent.

SAM D. JOHNSON, Justice.

The question presented for our decision in this case is a narrow one. The substantive legal issue is whether or not a directed verdict may be based on the uncontradicted testimony of a party to the lawsuit. To pose the question in its precise factual context, did the testimony of Ollie Collora, plaintiff below and petitioner here, establish as a matter of law one element (I. e., a present agreement to be husband and wife) of a common-law marriage between herself and Joe Collora when the other elements of such a marriage were conclusively proven by evidence other than her testimony? The trial court ruled in favor of Mrs. Collora by granting her motion for directed verdict. The court of civil appeals, with one member dissenting, reversed and remanded the cause. 566 S.W.2d 304. We agree with the action of the trial court and accordingly reverse the judgment of the court of civil appeals, but for reasons stated below, remand the cause to the trial court for rendition of a proper judgment.

Ollie Collora filed this suit against Franklin Navarro, defendant below and respondent here, in 1971 for partition of a 68.5-acre farm in Lavaca County, Texas. She alleged that she had an undivided one half interest in the farm by virtue of her common-law marriage to Joe Collora, who originally purchased the land in his name only and later attempted to transfer it to Camille Corporation, predecessor-in-title to respondent Navarro. The children of Joe and Ollie Collora intervened in the case on the side of Mrs. Collora, arguing that the transfer of land was fraudulently induced. They requested that a constructive trust be imposed on the land in their favor. At the close of the evidence, the trial court directed a verdict in favor of both Mrs. Collora and the children intervenors. Navarro appealed.

The court of civil appeals in its original opinion upheld the judgment in favor of Mrs. Collora. On rehearing, however, the court reversed the directed verdicts as to the children intervenors and Mrs. Collora and remanded both causes to the trial court. 566 S.W.2d 304. One member of the court dissented from the reversal as it related to Mrs. Collora. 566 S.W.2d 304 at 312-14. The children intervenors have not appealed from that decision and are therefore not now before this court. Only Mrs. Collora has appealed. ¹ She bases her appeal on the argument that the court of civil appeals erred in reversing the trial court because the evidence conclusively established the fact of her common-law marriage to Joe Collora, thus leaving no issue to be presented to the jury. We agree with this contention.

Ollie and Joe started dating in 1947, and by 1949 were going together on a steady basis. Ollie testified that in April 1949 she and Joe "agreed to a marriage" and moved into his mother's home where they lived until late 1949 or early 1950. This is the period of the claimed common-law marriage. Thereafter, in her words, they "confirmed" their marriage through a civil ceremony on February 11, 1950, some ten months after the commencement of their alleged common-law marriage. The reason ascribed for delaying the ceremonial marriage was religious differences between Joe's mother, a Catholic, and Ollie, a Protestant. ² Seven different witnesses, ranging from the County Agricultural Agent to next-door neighbors to relatives, testified that during the period between April 1949 and February 1950, the time period of critical inquiry, Joe and Ollie held themselves out to be married. Joe introduced Ollie as his wife, Mrs. Collora. They told people they were married. They lived together under the roof of Joe's mother as man and wife. For more than ten years, from April 1949 (the inception of their asserted common-law marriage) through the ceremonial marriage in 1950 and up until their divorce in December 1959, they cohabited together, maintained a household, and introduced themselves to people as Mr. and Mrs. Collora. All of this testimony was clear, direct, positive, and uncontradicted. Navarro called no witnesses of his own nor did he cross-examine any of Ollie's witnesses on the matter of her common-law marriage to Joe.

In late 1948 or early 1949, while still dating and before they had "agreed to a marriage," Joe and Ollie became interested in purchasing land under the Texas Veterans Land Board Program, Article 5421m, Texas Revised Civil Statutes Annotated, now codified as Texas Natural Resources Code Annotated, Sections 161.001-161.403. They decided on the 68.5-acre tract which is the subject matter of this suit. It was not until January 17, 1950, in the ninth month of their claimed common-law marriage, however, that Joe Collora, as purchaser, contracted with the Veterans Land Board for the purchase of this property in his name only. ³ Joe entered into this contract during the period of the asserted common-law marriage, but one month prior to their ceremonial marriage in February.

Joe and Ollie were divorced on December 15, 1959. Respondent Navarro, an attorney, represented Joe during the divorce proceedings. At the time of those proceedings the Veterans Land Board contract was still outstanding and in force and effect. The divorce decree granted Joe and Ollie each one half of the equity in the farm, but did not partition the tract of land. A little more than two years later, in January 1962, Joe attempted to convey by deed title to All of the land to the Camille Corporation. Later in the same month he assigned the Veterans Land Board contract to the Corporation. Ollie did not join in these transactions. Camille Corporation in turn attempted to convey by deed title to All of the 68.5-acre tract to Navarro. Joe Collora died testate in 1968. This suit was instituted in 1971. The decisions of the lower courts are set forth above.

The court of civil appeals applied the proper standard of review in this directed verdict case. The rule as generally stated is that the plaintiff is entitled to a directed verdict when reasonable minds can draw only one conclusion from the evidence. The task of an appellate court in such a case is to determine whether there is any evidence of probative force to raise fact issues on the material questions presented. The court must consider all of the evidence in the light most favorable to the party against whom the verdict was instructed, discarding all contrary evidence and inferences. Henderson v. Travelers Ins. Co., 544 S.W.2d 649 (Tex.1976); Echols v. Wells, 510 S.W.2d 916 (Tex.1974). When reasonable minds may differ as to the truth of controlling facts, the issue must go to the jury. Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365 (1948).

The validity of the common-law marriage has always been recognized in Texas. 1 L. Simpkins, Texas Family Law § 2:1 (1975); Comment, Common-Law Marriage in Texas, 21 Sw.L.J. 647 (1967). It is authorized by statute. Tex.Fam.Code Ann. § 1.91. A valid common-law marriage consists of three elements: (1) an agreement presently to be husband and wife; (2) living together as husband and wife; and (3) holding each other out to the public as such. Humphreys v. Humphreys, 364 S.W.2d 177 (Tex.1963). There was abundant evidence from other sources of the second and third elements, and the court of civil appeals correctly held that they were established as a matter of law. Consequently, our concern is directed solely to proof of the first element.

The only direct evidence relating to the first element a present agreement to be husband and wife was Ollie's testimony that she and Joe had "agreed to a marriage." Her testimony was direct, positive, and uncontradicted. Navarro chose not to cross-examine her, nor did he call her as an adverse witness. There was no other direct evidence produced at trial that proved or disproved her testimony. Under these circumstances, the court of civil appeals held that Ollie's testimony, standing alone, could do no more than raise a fact issue of credibility and could not support a directed verdict. With this conclusion we cannot agree.

The statement is often encountered that evidence given by a party or a witness who has an interest in the outcome of the suit cannot be the basis for an instructed verdict; it raises an issue of credibility upon which the jury must pass. 62 Tex.Jur.2d Witnesses § 374; Annot., 8 A.L.R. 796. This is the general rule, and one to which we still adhere. As with most general statements, however, this one is not without exception.

The exception to the rule was explained thusly by McDonald:

"But the testimony of an interested party or witness is not wholly without probative force. An instructed verdict based thereon favorable to the party with whom the witness is identified is proper when the testimony pertains to matters reasonably capable of exact statement, and is clear, direct, and positive, is internally devoid of inconsistencies and contradictions, and is uncontradicted either by the testimony of other witnesses or by circumstances in short, when there is nothing to cause any reasonable suspicion as to its truth." 3 R. McDonald, Texas Civil Practice § 11.28.6 at 249.

This exception is most appropriate when the opposing party has the means and opportunity of disproving the testimony or testing the credibility of the witness, but fails to avail himself of it. On the other hand, as we stated in Gevinson v. Manhattan Construction Co. of Okl., 449 S.W.2d 458 (Tex.1969), "the basis for recognizing an exception is weakened somewhat when the testimony is such that it could not readily be contradicted if untrue." 449 S.W.2d 458 at 467 (and cases cited).

The court of...