Gowin v. Gowin

• Citation: 292 S.W. 211
• Decision Date: 23 March 1927
• Docket Number: (No. 782-4252.)
• Parties: GOWIN v. GOWIN.
• Court: Supreme Court of Texas

292 S.W. 211

GOWIN v. GOWIN.

(No. 782-4252.)

Commission of Appeals of Texas, Section A.

March 23, 1927.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by Emma Lee Gowin against Jesse C. Gowin. Judgment for plaintiff was reversed and rendered by the Court of Civil Appeals (264 S. W. 529), and plaintiff brings error. Affirmed.

Ocie Speer, of Fort Worth, and Wantland, Dickey & Glasgow, of Henrietta, for plaintiff in error.

J. L. Lackey and R. E. Taylor, both of Wichita Falls, and H. M. Muse, of Henrietta, for defendant in error.

NICKELS, J.

This record exhibits an inexpressibly sordid view of the marital relation, and thus gives emphasis to the importance of the principle involved.

In 1916 Jesse C. Gowin was (about) 65 years of age, "palsied and nervous." As the fruits of a former union ten children were then living, the eldest of whom was (about) 35 years of age, and three of whom (two daughters, aged 22 and ____, respectively, and a son, aged 15) resided with him in the little town of Bellevue. He was "high-tempered," and his physical condition was such that he was unable to perform manual labor except in light tasks. Emma Lee (who resided at Seymour) was the survivor of a fruitless union with Stephen C. Lee (deceased in 1914), and 42 years of age. Her father and his wife (Emma's stepmother) resided in Bellevue and were there engaged in operating a small mercantile establishment. During the Christmas holidays in 1916, Emma Lee visited her father and stepmother, and remained about three weeks. During the "three weeks" she worked in the store; coincidently, Jesse Gowin began to visit the store — was "there every day." He and Emma Lee were introduced by the stepmother, and he began to make himself useful in Emma's tasks. But he "did not specially pay his addresses" to her. Emma Lee returned to her home in Seymour, and in February, 1917, returned to Bellevue for "a few days." This was preliminary to a trip to Dallas to be made by herself and stepmother for the purpose of buying some goods for a store to be opened at Seymour. During this visit, Jesse Gowin remarked to her that "if she would listen to him, she would not have to work that way" and "he would keep her from doing any work." The following Christmas he sent (by mail) a box of candy to her at Seymour, and she merely acknowledged receipt upon a postal card. In March, 1918, he visited her at Seymour, but what took place is not shown. The next communication between them was when he again visited her at Seymour in April, 1920, and gave her "a string of $1.25 white beads," some "cut flowers and a box of face powder and a magazine." According to Emma's testimony, "the tag was on the string of white beads, * * * and it was $1.25. * * * That is where he used bad judgment." These were all of the presents given during the "courtship." On the occasion of the visit just mentioned, Jesse proposed marriage and was accepted. The marriage followed in November, 1920. While upon the witness stand she said that she "had begun to love" him back in 1916, and that she "certainly did love him, and that is the reason" she married him, but the relevant averments of the petition upon which she seeks relief are these:

"Jesse repeatedly assured her of his devotion and love and repeatedly declared to her in substance that he was immensely wealthy, that he wanted to marry her, and that he would never permit to do any kind of menial work and would not permit her to want for anything, that he would build her the finest home in Clay county and would supply her with everything she could wish for, that he traveled a great deal and expected to take her on all his trips, and that he would provide and care for her in the best possible manner." And "all of these promises and assurances were made to her in the course of defendant's courtship and as a matter of inducement to bring about their marriage."

There is in the petition no claim that love for Jesse had anything to do with acceptance of his proposal. At the time of that acceptance, and at the time of the marriage, Emma Lee had not become acquainted with the children who resided with Jesse at Bellevue. It should be added, also, that Emma Lee had a "high temper." The enterprise, thus launched, ended "two months and six days" later. The reasons assigned in the pleading are "cruel treatment" by Jesse, plus immaterialization of the pecuniary inducements alleged.

The jury found that Jesse had offered some of the purchase price alleged and had not paid, but that he did not offer the other portions averred. "Cruel treatment" inducing the separation was found by the jury in general terms. That treatment, by the testimony, is (in substance) reduced to this: Jesse became somewhat "irritable." After retiring at night, his "toe-nails" would scratch Emma's feet and legs. Jesse said that this happened while he was asleep and, consequently, he knew nothing about it, if it happened at all, but Emma said that it was purposely done and that when she would remonstrate, and try to be "affectionate," he would do it again and also "kick" her legs. The force of the "kicks" and "scratches" is not further shown. Emma alleged and testified that as a result of Jesse's delinquencies (i. e. his breaches of the "marriage contract") her health has been ruined, she has suffered great physical and mental pain (and will continue to do so), and that she had been damaged in the sum of $100,000. In pleading or proof no effort was made at allocating the harmful results and the damages sought as between failure of the monetary considerations and falsity of the other "inducements." The jury allowed $1,000 for "pecuniary loss sustained because of the breach of said marriage contract by the defendant" and $500 for "mental suffering * * * sustained by reason of the breach." The trial court's judgment allowed recovery of the $1,000 damages as "pecuniary loss" and denied recovery of the mental anguish quid pro quo. Divorcement was not prayed or decreed.

Upon appeal the judgment was reversed and judgment was rendered for Jesse C. Gowin by the Honorable Court of Civil Appeals, Second District. 264 S. W. 529. To this action Judge Conner dissented. Writ of error was allowed, in part, because of the "importance of the question."

At all stages of the litigation the question has been, and it now is, this: Does breach of the marital obligations by one spouse give rise to a justiciable right in the other of such nature as that the one may sue for, and recover, damages from the other as for breach of a contract, in the absence of a divorce or prayer therefor? That a comparable suit to recover damages as sounding in tort may not be maintained is to be taken as settled by the Supreme Court in Nickerson v. Nickerson, 65 Tex. 281. Counsel for Mrs. Gowin recognize this truth, but seek to avoid its analogical effect by the expressed declaration that there exists a material distinction between the two classes of cases and the implied argument that Nickerson v. Nickerson should be overruled.

Those arguments as made (and as restated in Judge Conner's dissenting opinion) embrace the ad hominem postulate that, else, there inheres in the situation a species of discrimination against women who happen to be wives, for it is said:

"* * * It is well to remember that the question is of very great importance to every woman who is, or may become, a wife or mother — a highly cherished portion of our people."

"* * * Nevertheless, with the vision in mind of the wives and mothers of men as I know them, I have resolved in their favor whatever of doubt there may be. * * *"

The assumptions are nonsequential, for the court is called upon to deal with a principle of equal application to husband and wife. If the wife has a cause of action, ex necessitate, the husband, comparably situated, has one also, and the matter is of no more "importance to every woman who is, or may become a wife or mother," than it is to "every man who is, or may become, a husband or father." Perforce, the "vision" is wholly imperfect and fatally lacking in silhouette in that mirage of the "husbands and fathers of women" is essential to a rounding out of the view. Else, it would be as if Belshazzar, absent a Daniel, had read encomium for execration in the letters which were written "over against the candlestick." The truth is that visions cannot inject a doubt or assist in its resolution; but if they could have anything to do with the matter in hand, they would operate equally and impartially justify resolution in favor of the "wife or mother" to the same extent as in favor of the "husband or father." Under the law, as expounded by Judge Dunklin (in the majority opinion), there is no shadow of discrimination against the woman, and, as expounded by Judge Conner, there would be no removal of discrimination, for the simple reason that none exists. On this score, it would make no difference to men or women whether Judge Dunkin's exposition or that of Judge Conner finally became the law of the land.

Except for the non sequitur mentioned, the insistence for a litigible right has for its predicate the requirements of that due process vouchsafed in the state and federal Constitutions. It is said that a "married woman" is a "person" as that term is used in the Constitutions, and an elaborate argument is made upon the point in section 430, Speer's Marital Rights, cited in the opinion of dissent. This much, of course, is granted. The asserted corollary and the conclusion are that "due process," in the constitutional sense, includes a spouse's entitlement to the remedy now claimed and by necessary imputation declares existence for the cause of action. It does so, it is claimed, because marriage is a contract and the contract (plus the right to have its terms performed) is property.

But little need be said of the federal aspect, separately considered, for marriage, because it is a status and so far as...