Greenlaw v. Dilworth

• Decision Date: 23 November 1927
• Docket Number: (No. 978-4826.)
• Citation: 299 S.W. 875
• Parties: GREENLAW et al. v. DILWORTH et al.
• Court: Texas Supreme Court

299 S.W. 875

GREENLAW et al. v. DILWORTH et al.

(No. 978-4826.)

Commission of Appeals of Texas, Section A.

November 23, 1927.

Error from Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Mrs. Terry Greenlaw and husband against Mrs. R. S. Dilworth and others. A judgment for plaintiffs in the district court was reversed, and judgment rendered by the Court of Civil Appeals (291 S. W. 331), and plaintiffs bring error. Judgment of the Court of Civil Appeals reversed, and cause remanded.

Hertzberg & Kercheville, of San Antonio, for plaintiffs in error.

Clamp & Searcy, of San Antonio, for defendants in error.

NICKELS, J.

The case is generally stated in the opinion of the Court of Civil Appeals. 291 S. W. 331. It was brought to the Supreme Court upon assignments challenging jurisdiction in the Court of Civil Appeals to render final judgment contrary to that of the trial court.

A Court of Civil Appeals "may draw from the evidence conclusions of fact different from those arrived at by the jury or judge, and it may reverse the judgment of the lower court and remand the cause for the reason that it thinks the verdict and judgment to be against the weight of the evidence, but the determination of questions of fact as the basis of a final judgment involves the exercise of original jurisdiction which has not been conferred upon the Courts of Civil Appeals." H. & T. C. Ry. Co. v. Strycharski, 92 Tex. 1, 37 S. W. 415; Choate v. S. A. Ry. Co., 91 Tex. 406, 44 S. W. 69; Sprinkles v. Kerbow (Tex. Com. App.) 279 S. W. 805, and cases there cited.

The evidence is not stated, even by way of summary, in the opinion of the Court of Civil Appeals; it is there dealt with only in the manner of general ultimate conclusions. Nor did that court make finding upon preponderance or sufficiency of evidence, as was done in Sprinkles v. Kerbow, supra. Judgment awarding final relief was rendered by that court, and this involves a finding that the evidence tends in one direction with that conclusiveness which leaves no ground for combat of rational minds. The situation thus projected gives rise to our duty to examine the entire record and therefrom to ascertain, with the aid of relevant formularies, whether there be that cogency of proof which is the postulate of the final award.

Because there is much in seeing a witness (H. & T. C. Ry. Co. v. Gray, 105 Tex. 42, 143 S. W. 606) and because in general credibility does not lie outside the range of the jury function, we must, of course, accord verity to whomsoever may have spoken a word in favor of the party who finally lost and allow to the primary trier of facts his full liberty to believe or disbelieve as he might rightly choose, those speaking with contrary import. Our duty, too, requires that the evidence be considered with remembrance of the special nature of the case and in the view most favorable to the loser.

I. Conjugal Infidelity.

There is in the proof no evidence of unchastity. The sole evidence of infidelity in its milder senses is the supposed fact and subject-matter of certain correspondence mentioned by the Court of Civil Appeals as being "letters" "filled with erotic protestations and revealing that they were constantly replied to in the same spirit, at a time when the marital relation existed between" the lady who is now Mrs. Greenlaw "and Elliott Jones." There are five of the purported "letters," with dates in March, April, and May, 1921. For immediate purposes the statement of the Court of Civil Appeals may be accepted as a sufficient description of the "letters"; they certainly bear no interpretation more adverse to Mrs. Greenlaw.

The evidence about the "letters" is peculiarly circumstanced. Mrs. Greenlaw's connection with the correspondence in any form is not otherwise established than by the testimony of Belle Williams, a negro ex-servant, who appeared as a witness for Mr. Jones and Mrs. Dilworth. Her testimony by deposition was first introduced. A paragraph of the deposition, as reproduced in the statement of facts, reads thus:

"The witness was asked it she ever found any letters there on the place written to Mrs. Jones by men, and replied that she had seen letters around there. I never read any of those letters, nor do I know who they were from."

There is in the deposition no other reference to "letters." Subsequently the witness appeared and testified. She declared:

"I did not have those letters when I testified by deposition, and I did not say anything about letters then."

Other important references were these:

(a) On direct examination:

"I always had to clean up the house, and I found them in the wastebasket" (in Mrs. Jones' room) "and why I kept the letters was because Mr. Jones told me, that is the reason I kept them."

(b) On cross-examination:

"I kept them to protect myself, because Mr. Jones often said to me, `If you ever say anything and can't prove it' — Mrs. Jones did not tell me to keep the letters, but I kept them of my own accord. I just took it on myself to keep them because I thought if anything like this would come up I would have those letters to protect myself about things I had seen sometimes. I did not go to Mr. Jones and tell him that I had the letters, and I do not know how he knew about it; the first time I showed Mr. Jones the letters was not long ago; he came out to my home and asked me if I had some letters that I had found of Mrs. Jones, and I told him, `Yes,' * * * and I gave them to Mr. Jones."

Mr. Jones testified that he did not know of the "letters" until he got them from Belle Williams a short time before the trial. Mrs. Greenlaw testified in general denial of any correspondence with the supposed author of the "letters" "in the sense inferred"; that testimony being given prior to introduction of the "letters," and, so far as the record shows, before she had opportunity to examine them; after the "letters" were introduced she did not testify on any point. Mr. Jones testified generally after Belle Williams' deposition had been read and after she had testified in person, but he made no specific denial of or reference to Belle's declaration that "why she kept the letters was because Mr. Jones told me to."

That one whose business it is to accredit or to disbelieve a witness might properly regard Belle Williams as contradictive of herself and of Mr. Jones and of Mrs. Greenlaw becomes manifest. In the first place, she "did say something about letters when she testified by deposition," although personal appearance as a witness was accompanied with a denial of that fact. In the next place, she gave contradictory reasons as to why she kept the letters; she "kept them because Mr. Jones told her to do so," but she "kept them of her own accord"; she had never read the "letters,' yet she kept them for her own "protection." In the third place, she did not know how Mr. Jones came to know about them, yet she kept them originally because he told her to do so. In the fourth place, Mr. Jones knew nothing of the letters until shortly before the trial, according to his testimony, but according to Belle she kept them because he told her to do so. And in the fifth place, Mrs. Greenlaw's testimony may be taken as a circumstantial denial of Belle's declarations that she found the letters in the wastebasket mentioned at a time when Mrs. Greenlaw (then Mrs. Jones) told her to empty the basket and destroy the "trash." Credibility thus became substantially issuable with the result that a trier of facts might disbelieve the witness in the whole or in respect to any of her testimony. If she were entirely discredited, the "letters" as evidence would depart from the case.

But in the failure of Mrs. Greenlaw to make specific denial of the particular correspondence and in the failure of Mr. Jones to deny Belle Williams' statement that he told her to keep the "letters" there is possible corroboration of some of Belle's testimony. M., K. & T. Ry. Co. v. Day, 104 Tex. 237, 243, 136 S. W. 435, 34 L. R. A. (N. S.) 111; Craycroft v. Crawford (Tex. Com. App.) 285 S. W. 275, 280, 281. There arises, then, the hypothesis of belief (a) in Mrs. Greenlaw's connection with the "letters," and (b) of Mr. Jones' knowledge of that fact and of the contents of the letters acquired several years before the trial and even before the divorce proceeding. We make the latter statement because, in so far as time is identified, Belle Williams merely indicated her discovery of the letters as being in the ordinary course of household duties, and, in consequence, a trier of facts could allocate that time and the time that Mr. Jones instructed keeping of the "letters" to some date near their receipt by Mrs. Jones. Scott v. Townsend, 106 Tex. 322, 341, 166 S. W. 1138; Craycroft v. Crawford, supra. That hypothesis wears a double mien. (a) Mr. Jones with knowledge of the fact of correspondence, under the circumstances, would have at least imputed knowledge of the subject-matter, and with that knowledge there was silence for a considerable time (maybe, 4 years and 5 months). With the generality and indefiniteness by which the contents of the "letters" is marked in view, a trier of facts might justifiably believe that Mr. Jones, with superior opportunity to judge, construed the matter and regarded the significance as being of import much different from the meaning lately sought to be given. And, too, condonation and its effect would project itself. (b) There is no suggestion that any correspondence or communication of any sort took place between Mrs. Jones and the supposed author of the "letters" after May, 1921, or that any comparable relation existed between her and any other man at any time. Hence in the general posture there was locus pœnitentiæ, as in general there ought to be lest a juror or judge mock the spirit of philosophy, deny the efficacy of aroused conscience, and admit the invincibility of sin. If Mrs. Jones was guilty of the indiscretion or the vice,...