Garner v. Bowles

• Decision Date: 23 April 1921
• Docket Number: (No. 9618.)
• Citation: 233 S.W. 300
• Parties: GARNER v. BOWLES et al.
• Court: Texas Court of Appeals

233 S.W. 300

GARNER v. BOWLES et al.

(No. 9618.)

Court of Civil Appeals of Texas. Fort Worth.

April 23, 1921.

Rehearing Denied May 21, 1921.

Appeal from District Court, of Montague County; C. R. Pearman, Judge.

Application for writ of habeas corpus by R. A. Garner against Mrs. A. R. Bowles and another. Judgment for defendants, and relator appeals. Reversed and rendered.

Homer B. Latham, of Bowie, and W. O. Davis, of Gainesville, for appellant.

Donald & Donald, and Benson & Benson, all of Bowie, for appellees.

CONNER, C. J.

This proceeding was instituted by R. A. Garner, a resident of the state of Oklahoma, in the district court of Montague county, by an application for a writ of habeas corpus to recover from Mrs. A. R. Bowles and Miss Helia Bowles the custody of his two minor children, Rebecca May and Samuel E. Garner, 9 and 3 years of age, respectively. The writ of habeas corpus was issued as prayed for, upon the return of which a hearing was duly had on June 17, 1920. The court, after having heard the evidence, refused the prayer of the relator, and remanded the custody of the children to the respondents, and the relator has duly appealed.

The only assignments of error presented by appellant are assignments which question the sufficiency of the evidence to sustain the court's judgment. The evidence has been carefully considered, but there is little, if any, conflict in the material facts. Appellant's first wife was Rexie Bowles, a daughter of appellee Mrs. A. R. Bowles and a sister of appellee Helia Bowles. After the marriage, for some time appellant and his wife lived with appellees at the home of Mrs. A. R. Bowles. Appellant was engaged in ordinary labor, at a salary from $50 to $70 per month, he contributing to the support of his family. To this marriage were born three children, to wit, Richard A., already in appellant's custody, and Rebecca May, and Samuel E. Rexie Bowles Garner died March 23, 1918, leaving surviving her appellant and the said children. At the time Rebecca May was 6 years of age and Samuel E. was 9 months of age. The evidence tends to show that appellant was then unable to properly care for his children, and in order to have this done they were committed to appellee Mrs. A. R. Bowles, with the statement by appellant that she might keep them as long as she lived. Appellant thereafter removed to Wichita Falls, Tex., where he was in the employ of one or more parties, and later removed to Oklahoma, where he, together with another party, engaged in business, in which he has accumulated a net interest of $16,000. Some 9 months after the death of his first wife, appellant married again. His present wife at the time of the marriage was 19 years of age, at the date of the trial 23. She has never had any children of her own but was the oldest of a family of eight children, and assisted in caring for them. Witnesses who knew her testified that she was of good disposition, and gave no account of her life or actions to her discredit. On one or more occasions the little children in controversy visited appellant and his present wife, and witnesses who observed her demeanor testified that she treated them kindly. Mrs. Garner herself testified, among other things, that:

"I desire to take care of these three children of Mr. Garner, and have been willing to do so since I married him. I contemplated doing this at the time I married, and expected to do so. I will treat them as near like a mother as I can. I did not treat the little girl in a cruel manner when she visited us, and did not chastise her, but did speak to her, but not harshly. I would expect them to obey me, if we are given the custody of the children. I am physically able to take care of and look after these children and do the additional work, and I am willing. I worked about 4 years before I married, as I had to make my living."

On the other hand, Mrs. Bowles testified that at the time of the trial she was 63 years of age, was in good health, and she owned her own home, a cow, chickens, and garden; that appellee, her daughter, Helia Bowles, lived with her, and earned $70 per month, which with the aid of the cow, chickens, and garden enabled them to live comfortably; that she felt able to support the children without the aid of their father; that she was unable to state the exact amount the father of the children had contributed to the support of the children while she had them. She further testified:

"I suppose he done the best he could. Mr. Garner and my daughter came to my house before the little girl was born, and stayed until she was 2 years old. He did not pay any house rent. His wife and all were there for 17 months, but what he actually spent I do not remember. Mr. Garner gave as his reason for wanting the children was that his wife was making him do it, forcing him to do it, and she was making him live in hell. [This Mr. Garner denied.] The little girl and her brother have visited Mr. Garner in his home. They stayed two or three days and came back with never a thing washed. * * * When the little girl was sick I called Doctor Wilson, as I get excitable over the children when they get sick. I called her father, and he said he wouldn't come unless something serious happens, and he never called up and asked me how the child was; he never came at all. My daughter, Doctor Wilson, and I waited on the child for six months, just nothing but skin and bones. * * * Helia and I are in a position to care for the children. We are all members of the church. The little girl is in the third grade at school, and has never been kept out of school and never was tardy. I desire to keep these children because of the relationship. I would give my life for them. I have stayed right at home with them all the time. I never go to the picture show and leave them. I wouldn't leave them to go to the nearest neighbor's house. * * * I have raised five children of my own in Bowie, and am as well qualified to raise them as my own."

Further testimony was to the effect that in addition to the two children now with her she is rearing another grandchild; that her daughter Helia lives with her and contributes to her support. Appellee Helia Bowles testified that she had worked for the telephone company off and on for some 8 years, and contributed to the support of the children, and was able to provide for them in connection with her mother's help; that while Mr. Garner lived in their home from February, 1911, to June, 1913, some 28 months, that she paid half the expenses incurred, and Mr. Garner contributed approximately $25 per month; that she received from Mr. Garner $150, for which she offered to give her note, but that he would not let her do so, stating that it was a Christmas present; that she loved the children better than herself; that from February, 1915, to June, 1916, he gave Mrs. Garner $77, and $20 after that, and later he sent $15, $112, in all; that he was with the telephone company at the time, making $55 a month. The family consisted of Garner, his wife, and the little girl, in 1911. She further testified:

"I should think Mr. Garner has contributed as much as $900 in 2 years and 3 months; about $25 a month. He has sent $25 a month since last fall; before that he wouldn't send more than $12.50 sometimes, sometimes more. I could have supported the children without it. He gave me $25 in cash when I started on a trip to Arkansas; I had forgotten that. He gave the children a little which I put in a savings bank; I have it in the bank for them, $30."

Other witnesses testified to an acquaintance with Mrs. Bowles and Miss Helia, and stated that they were members of the church, of good character, and that in their opinion the home life of Mrs. Bowles was conducive to the welfare of the children she was raising.

Under this statement of the facts, in our judgment, the court should have granted the prayer of appellant, and awarded to him the custody of his children.

In all such cases the essential fact to be...