Gowin v. Gowin

• Decision Date: 17 May 1924
• Docket Number: (No. 10540.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 264 S.W. 529
• Parties: GOWIN v. GOWIN.
• Court: Texas Court of Appeals

264 S.W. 529

GOWIN v. GOWIN.

(No. 10540.)^*

Court of Civil Appeals of Texas. Fort Worth.

May 17, 1924.

Rehearing Denied June 14, 1924.

Appeal from District Court, Clay County; H. R. Wilson, Judge.

Action by Emma Lee Gowin against Jesse C. Gowin. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Taylor & Taylor and J. L. Lackey, all of Wichita Falls, and H. M. Muse, of Henrietta, for appellant.

Ocie Speer, of Fort Worth, and Wantland, Dickey & Glasgow, of Henrietta, for appellee.

DUNKLIN, J.

Jesse C. Gowin has appealed from a judgment recovered against him by his wife, Emma Lee Gowin, for damages alleged to have been sustained by the wife by reason of the breach of the marriage contract by the husband. According to allegations in plaintiff's petition, she was married to the defendant November 8, 1920. Soon after the marriage, the defendant began a course of outrageously cruel treatment of her, and on many occasions thereafter violently assaulted, kicked, and scratched and threatened her with bodily injury, all in anger and without any provocation on her part. Such treatment on the part of the defendant continued without abatement and grew worse all the time until the month of February, 1921, when plaintiff was forced to leave him to save herself from bodily harm. Since such separation the plaintiff has lived separate and apart from the defendant. After the separation, plaintiff endeavored to induce the defendant to take her back, accord to her the treatment to which she was entitled from a husband and to forego his cruelties, all of which the defendant refused to do.

Plaintiff alleged that the treatment so received by her from the defendant was so outrageous and cruel as to render their further living together insupportable, and therefore the separation is permanent, although she desired no divorce.

She alleged that prior to the marriage she was a widow, engaged in the millinery business, which was her only means of earning a support, and defendant was a widower who represented himself as a wealthy man and able to supply her every want and provide her with a fine home and support her in the best possible manner if plaintiff would marry him. By reason of the defendant's promises of such support, in addition to his further promise to treat her kindly, all of which promises and assurances were often repeated, plaintiff was finally induced to marry the defendant.

According to further allegations, plaintiff has sustained damages by reason of the breach of defendant's marriage contract, which she sought to recover. The damages so alleged consist in the loss of the benefits, comforts, emoluments, and advantages that she was entitled to receive and would have received but for the defendant's breach of his marriage contract. She also claimed damages for the humiliation and mortification which she has suffered, and also for physical suffering which she has sustained in consequence of the nervous wreck in which she has been left by reason of the defendant's wrongful treatment, as above stated.

In the answer filed by defendant, all of the allegations in plaintiff's pleadings were denied.

The trial was before a jury on special issues, in answer to which the jury found:

(1) That the defendant had been guilty of excesses, cruel and outrageous treatment toward the plaintiff of such a nature as to render their living together insupportable.

(2) That by reason of such treatment plaintiff had ceased to live with the defendant.

(3) That plaintiff has sustained pecuniary losses in the sum of $1,000 by reason of defendant's breach of his marriage contract, and has sustained mental suffering by reason of such breach, the reasonable compensation for which is $500.

(4) That, prior to the agreement of the parties to marry, defendant did not represent to plaintiff that he was a wealthy man, but did represent to her that he would provide her with one of the nicest homes in Clay county, as alleged in plaintiff's petition; and that he would provide or arrange conditions suitable to plaintiff's enjoyment of life; but that none of such representations materially induced the plaintiff to enter into the agreement to marry the defendant.

The jury further found that the defendant did not perform any of said promises.

There was evidence sufficient to support the findings of fact made by the jury, and, although the defendant introduced testimony to the contrary, no assignment has been presented complaining that the evidence was insufficient to sustain the verdict.

The record shows that plaintiff was 48 years old at the time of the trial; that her former husband had been dead more than 6 years when she married the defendant, and that from his estate she received about $2,300 in money and a small four-room cottage in the town of Seymour. When she married the defendant, she was engaged in the millinery business for a livelihood and owned about $1,000 in money. The defendant testified that he did not know his exact age, but from what he had been told by his mother he estimated it to be approximately 70 years. His former wife had been dead for a number of years, and to that marriage ten children were born, all of whom are still living, and most of whom are now married. His property consists of several hundred acres of land which is used by him for farming and stock raising purposes, about 500 acres being in cultivation. His stock consists of about 60 head of cattle and about 25 head of horses. According to his testimony, which it seems was not contradicted, his habits of living have always been plain and frugal, and he lives on his farm and earns his living from its use. The evidence indicates that the house in which he lives is a plain old country home, reasonably comfortable, but not ostentatious.

If plaintiff's petition states a cause of action for damages for the wrongs alleged and found by the jury, then we believe that such cause of action and the right to recover thereon was a property right belonging to her separate estate. To hold that the same would belong to the community estate would be to allow the defendant to profit by his own wrong; in other words, it would give him the right to share equally with his wife in the damages which he has wrongfully caused her and also to control and manage her part as well as his own, under and by virtue of the statute giving the husband such control over the community estate.

In Nickerson v. Nickerson, 65 Tex. 281, damages recovered by Mrs. Nickerson against Matson for a tort committed by him and plaintiff's husband jointly was held to be the separate property of the wife, although not coming within the contemplation of our statutes declaring what shall be separate and what shall be community property. That conclusion was reached by reason of the fact that, since the husband was a joint tortfeasor with Matson, he could not, either alone or by being joined with his wife, enforce a recovery against Matson for the tort; and since he had no such right he could not have any interest in the cause of action; and that, since the wife had the right of recovery in which the husband could not have any interest, necessarily, that right of action would be her own separate property. For the same reason the cause of action asserted by plaintiff in the present suit, if any she has, is her separate property. And if such damages belong to her separate estate, then she has the legal right to maintain her suit therefor against her husband, as is well settled by numerous decisions in this state, some of which are the following: Price v. Cole, 35 Tex. 461; Ryan v. Ryan, 61 Tex. 473; Dority v. Dority, 96 Tex. 215, 71 S. W. 953, 60 L. R. A. 941; Holland v. Riggs, 53 Tex. Civ. App. 367, 116 S. W. 167; Shaw v. Shaw, 50 Tex. Civ. App. 363, 111 S. W. 223; Heintz v. Heintz, 56 Tex. Civ. App. 403, 120 S. W. 941. Those decisions have been supplemented by the amendment of article 4621 of our statutes, passed in 1913 (Laws 1913, c. 32; Vernon's Sayles' Ann. Civ. St. 1914, art. 4621) giving the wife, during her marriage, the sole management, control, and disposition of her separate property, since the authority so given implies the further incidental power to institute and maintain any suit to protect or enforce such property rights. Whitney Hardware Co. v. McMahan, 111 Tex. 242, 231 S. W. 694.

The next question to be determined is: Does the plaintiff's petition, considered in connection with the findings of the jury show a right of recovery against the defendant, from whom she has never been divorced?

Following are the principal propositions urged in appellee's brief in support of the recovery decreed to her:

"To deny plaintiff a remedy for the injuries complained of is to violate the bill of rights of this state, article 1, § 13, declaring: `All courts shall be open; and every person, for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law;' and moreover, is to deny to her that due process of law, the equal protection of the laws vouchsafed by the Constitution of the United States contained in Amendment 14, § 1.

"The principles of the common law are not controlling as to plaintiff's right to maintain this suit, since the common law regulating marital rights has never been in force in Texas, but such rights have from the beginning been defined and regulated by statutes, and the disabilities of coverture are therefore determined by such statutes.

"The contract for marriage confers valuable property rights upon the parties even before its partial performance by marriage, and the law affords redress to the injured party against the person breaching, or wrongfully causing the breach of, such contract, whether before or after marriage.

"The property rights of a wife in her marriage contract having their inception in a contract executed before marriage, constitutes a part of her separate estate, being property `owned or claimed by her before...