Heard v. Heard

• Decision Date: 28 March 1925
• Docket Number: (No. 11117.)
• Citation: 272 S.W. 501
• Parties: HEARD v. HEARD.
• Court: Texas Court of Appeals

272 S.W. 501

HEARD v. HEARD.

(No. 11117.)

Court of Civil Appeals of Texas. Fort Worth.

March 28, 1925.

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

Divorce action by Lula A. Heard against John L. Heard. From judgment denying plaintiff a divorce, she appeals. Affirmed.

R. H. Hopkins, of Denton, W. O. Davis, of Gainesville, and Ed I. Key and Owsley & Owsley, all of Denton, for appellant.

Geo. M. Hopkins and Brent C. Jackson, both of Denton, for appellee.

BUCK, J.

This is an appeal from a judgment of the district court of Denton county, denying plaintiff a divorce. Plaintiff alleged: That she and defendant were married December 7, 1902, and lived together until June 2, 1922, since which time they had been separated. That there were seven children, all girls, the fruits of their marriage, to wit, Eureka, 17 years of age; Elsie, 16; Vera, 13; Goldie, 10; Mary, 8; Iris, 6; and Arabella, 3. The petition was filed on December 4, 1922. Plaintiff alleged that defendant had been guilty of excesses, cruel treatment, and outrages, rendering their longer living together insupportable in this: (a) That about 16 years ago, at their then home in Cooke county, while the plaintiff was in poor health, and one of their children was a baby, the defendant wrongfully abused her and called her a liar, and frequently thereafter told the plaintiff she was a liar; that during the year 1921, while plaintiff and defendant were living at her mother's home, in Cooke county, defendant denounced the plaintiff and her mother and the plaintiff's two daughters as liars, and at about the same time ordered plaintiff's mother off of her own place, where plaintiff and defendant were then living. (b) At about eleven years prior to the filing of the suit, while plaintiff and defendant were living on plaintiff's own place, in Cooke county, the defendant, in an angry and threatening manner, and without excuse, ordered the plaintiff to get her clothes and leave her home. (c) That in the early part of 1921, while Carl James, a nephew of defendant, was living with the plaintiff and defendant at plaintiff's home, and the plaintiff was sending him to school at her own expense and at the request of defendant, defendant said: "Why don't you go upstairs and sleep with Carl, or have him come downstairs and sleep with you; that is what you want" — thereby without cause, excuse, or justification, wrongfully imputing to the plaintiff a want of chastity, and grieviously mortifying and humiliating her. (d) That on September 20, 1920, at their home in Cooke county, the defendant wrongfully, and in an angry and threatening manner, struck and pushed the plaintiff, and repeated the act on or about the month of July, 1921, and that during the month of January, 1923, at the plaintiff's home in Denton county, the defendant drew his fist on plaintiff and threatened to strike her, and during the same month he drew his fist on the daughter Eureka; and in the summer of 1922, the defendant without cause told his daughter Elsie that he ought to kick her out of the house, and told his daughter Eureka that he ought to throw her out of the window. That in the summer of 1921, at their home in Denton county, the defendant, in the presence of plaintiff, wrongfully called his daughter Eureka a damned fool, and upon another occasion, about the same time, the defendant said to the plaintiff that "he was going to hell, and drag his family with him." (e) That the defendant at the plaintiff's home in Denton, and in Cooke county, frequently told the plaintiff that she was acting the damn fool, and upon occasions too numerous to mention denounced the plaintiff and her mother as "hell cats." (f) That on January 14, 1923, in their home at Denton, the defendant wrongfully accused the plaintiff of swearing a lie, such wrongful accusation being made by the defendant in the presence of plaintiff's children. (g) That defendant continuously and wrongfully collected the rents from plaintiff's separate estate, consisting of 200 acres of farm land in Cooke county, and that defendant has refused to work, though able to do so, and has wrongfully failed to contribute to the support of his children, while hiring hands to do the work, which he should have done himself, though plaintiff was forced to cook for such hands. (h) That during the month of January, 1922, the plaintiff suffered a loss by fire on her separate real estate, and the defendant wrongfully collected and appropriated to his own use the sum of $2,250 paid by the insurance company.

Plaintiff seems to have alleged in her first amended original petition that defendant notified a dry goods company in Denton not to let plaintiff and his family have any more dry goods, but that portion of the petition was excepted to by defendant in his answer, and the second amended petition, being the only one in the transcript, does not contain the allegation.

Plaintiff prayed that she be granted a divorce from defendant and for the custody of their children, and the right to her separate property, both real and personal, be established, and that she recover her costs.

It appeared from the argument of counsel in this court, and from the testimony, that the trial court had granted plaintiff an injunction against defendant, restraining him from coming on the premises, except once a week to see the children; but there is no showing in the transcript that such relief was prayed for or granted, except that in the order of the court overruling plaintiff's motion for a new trial, the court provided that the injunction theretofore granted against the defendant should continue in full force and effect during the pendency of this appeal.

In the statement of facts, as well as in the pleadings of plaintiff, it was shown that during the fall of 1921, plaintiff instituted a suit against defendant for divorce, and that the defendant induced her to live with him again, promising that if she would dismiss the suit he would thereafter treat her with kindness, and so conduct himself that she would have no cause to complain; that the plaintiff relied upon these promises, dismissed her petition for divorce, and agreed to live again with defendant, but it was alleged that he disregarded his promises and thereafter renewed and repeated his misconduct, and treated the plaintiff worse than before, and the plaintiff again was forced to separate from him.

Plaintiff and her witnesses, consisting of her husband's nephew Carl James, her daughters Eureka and Elsie, and her brother W. E. Dickinson and his wife, and her tenant on the farm in Cooke county, Bill Davis, testified substantially, in support of the grounds for divorce alleged in plaintiff's petition. But the defendant and his witnesses, 18 in number, including Vera and Goldie Heard, his third and fourth daughters, 14 and 11 years of age, respectively, in the main, contradicted the testimony of plaintiff's witnesses as to the alleged reprehensible conduct of defendant. Some 13 witnesses, both men and women, neighbors of the Heard family, both in Cooke and Denton counties, testified to circumstances tending to show that defendant had been a good and dutiful husband and father, showing a keen interest in the welfare of his family, taking the children back and forth to school in a conveyance in bad weather, taking his wife and children to church, etc., and that he did all that could reasonably be expected of a husband and father in the care and protection of his family.

In view of this conflict of testimony, we cannot disturb the verdict of the jury, and the judgment of the trial court, denying plaintiff a divorce. The judge and jury who heard the witnesses testify are better judges of their credibility and of the facts than we are. Gardenhire v. Gardenhire (Tex. Civ. App.) 258 S. W. 1077, and numerous other cases.

Appellant in her first assignment complains of the refusal of the trial court to give this instruction:

"If the defendant wrongfully imputed to the plaintiff a want of chastity, and wrongfully accused her of improper relations with Carl James, that of itself would be sufficient to justify a verdict in favor of the plaintiff."

The court charged that:

"The plaintiff, Lula A. Heard, is entitled to a divorce if the defendant has been guilty of excesses, cruel treatment, or outrages toward her of such a nature as to render their living together longer as husband and wife insupportable.

"The material allegations in plaintiff's petition are that defendant called plaintiff a liar, and shook his fist at her, saying he ought to use that on her; and that he accused plaintiff of swearing falsely; and that the defendant pushed and slapped the plaintiff; and that he accused her of being a damned fool; and that he forged her name upon a promissory note and to a receipt for the amount due on a fire insurance policy; and conspired with a tenant to deprive plaintiff of the right to lease her separate land to whom she pleased; and accused the plaintiff of being a hell cat, and ordered her to leave her home; and of saying to plaintiff that she ought to go upstairs and sleep with Carl James or have Carl James come downstairs and sleep with her. The question for you to determine is whether or not the material allegations in plaintiff's petition are true.

"You are therefore instructed that if you find and believe that the material allegations of plaintiff's petition are true, or any part thereof, and are of such a nature as to render the living together of plaintiff and defendant as husband and wife longer insupportable, then plaintiff would be entitled to a divorce.

"If, however, you do not find from a preponderance of the evidence that the material allegations in plaintiff's petition are true, or, if true, that they are not of such a nature and extent as to render the further living together of plaintiff and defendant as husband and wife insupportable, then your verdict will be for defendant."

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