Crespi v. Wigley

• Court: Texas Court of Appeals
• Writing for the Court: Barcus
• Citation: Crespi v. Wigley, 18 S.W.2d 716 (Tex. App. 1929)
• Decision Date: 30 May 1929
• Docket Number: (No. 812.)
• Parties: CRESPI v. WIGLEY.

18 S.W.2d 716

CRESPI v. WIGLEY.

(No. 812.)

Court of Civil Appeals of Texas. Waco.

May 30, 1929.

Rehearing Denied June 27, 1929.

Appeal from District Court, McLennan County; Richard I. Monroe, Judge.

Suit by Willard R. Wigley against Pio Crespi. From an interlocutory order overruling his plea of privilege, defendant appeals. Affirmed.

Crane & Crane, of Dallas, and W. L. Eason and Bryan & Maxwell, all of Waco, for appellant.

Williams, Williams, McClellan & Lincoln, of Waco, for appellee.

BARCUS, J.

Appellant prosecutes this appeal from an interlocutory order entered by the trial court overruling his plea of privilege. Appellee instituted this suit against appellant, a resident citizen of Dallas county, to recover damages, claiming that appellant had, in McLennan county, won the love, affection, and confidence of his wife, Florence Wigley, and had alienated her love, affection, and confidence from him. Appellant filed his plea of privilege to be sued in the county of his residence. Appellee filed a controverting affidavit, and seeks to hold venue in McLennan county under subdivision 9 of article 1995 of the Revised Statutes, which authorizes a suit to be instituted, when based upon a crime, offense, or trespass, in the county where such crime, offense, or trespass was committed. A jury was impaneled, and, in response to special issues submitted by the court, found that appellant did by intentional conduct gain the affections of appellee's wife while she was his wife, and that some of the acts or conduct of appellant, in pursuance of the intentional purpose to gain her affection, occurred in McLennan county. No other issue was submitted by the trial court and none requested, except appellant requested a peremptory instruction in his favor.

Appellant contends that the alienation of a wife's affection or the gaining of her love and affection by words, acts, or conduct which do not amount to criminal communications, but which do cause her to leave her husband, does not constitute a "trespass" within the meaning or contemplation of subdivision 9 of said article 1995; his contention, as we understand same, being that such actions and conduct constitute a trespass on the case, rather than a trespass, and that if same is a trespass on the case, said exception to the venue statute does not apply. We overrule this contention. The rule seems to be well established that where a party willfully or intentionally, by words spoken, acts done, or influences put in motion, causes another person injury, either to his person or property, same is, within the contemplation of the venue statute, a trespass. The rule which seems to have been adopted by our courts, as well as the courts of other states that have a venue statute similar to ours, is that a trespass within the contemplation of the venue statute embraces not only actions of trespass proper, as known to the common law, but also actions of trespass on the case where an injury has been willfully, intentionally, or negligently done by one party to the person or property of another. Hill v. Kimball, 76 Tex. 210, 13 S. W. 59, 7 L. R. A. 618; Cahn Bros. & Co. v. Bonnett, 62 Tex. 674; Ricker v. Shoemaker, 81 Tex. 22, 16 S. W. 645; Cox v. Strickland, 120 Ga. 104, 47 S. E. 912, 1 Ann. Cas. 870; Geary v. Word (Tex. Civ. App.) 259 S. W. 309; Thompson v. Wynne (Tex. Civ. App.) 9 S.W.(2d) 745; Wettermark v. Campbell, 93 Tex. 517, 56 S. W. 331; Ward v. Odem (Tex. Civ. App.) 153 S. W. 634; Brooks v. Hornbeck (Tex. Civ. App.) 274 S. W. 162; 26 R. C. L. 934. In Hill v. Kimball, supra, our Supreme Court held that a trespass, within the meaning of the venue statutes, included all injuries to persons or property which are the result of the negligence or of the intentional or willful action of the wrongdoer, and specifically held that the word "trespass" embraced not only actions of trespass proper, as known to the common law, but also actions of trespass on the case. This holding has never been overruled, but, on the contrary, has been in this respect, as shown by the above authorities, several times affirmatively approved. In the case of Cox v. Strickland, supra, the Supreme Court of Georgia construed a similar statute on the venue question, and in a well-written opinion collated the authorities from a number of the different states, announced the same doctrine, and followed the same rule as that embraced in Hill v. Kimball, supra.

Appellant by a number of propositions contends that the testimony relative to certain acts, words, and conversations had by appellant with appellee's wife in Fort Worth, New York, and other places, including an extended trip to Europe, was inadmissible, because same was irrelevant, immaterial, and prejudicial; his contention being that it did not tend to prove any trespass as having been committed in McLennan county. We overrule these propositions. The record shows that for some eight or ten years prior to the filing of this suit, appellant and his wife, Louise Crespi, and appellee and his wife, Florence Wigley, were living in Waco; that during the last three or four years prior to the summer of 1927, they were more or less associated with each other in the same social group and were frequently thrown with each other; appellee's contention being, and the testimony offered by him in support of his controverting affidavit on the question of venue tended to show, that during those years appellant, in McLennan county, sought and did win or gain the affection of appellee's wife. The testimony objected to was with reference to trips outside...