Howell v. Howell
| Decision Date | 20 November 1947 |
| Docket Number | No. 11921.,11921. |
| Citation | 206 S.W.2d 616 |
| Parties | HOWELL v. HOWELL. |
| Court | Texas Court of Appeals |
Appeal from District Court, Waller County; W. B. Browder, Judge.
Divorce action by Alma Sorsby Howell against A. S. Howell, Sr. From a judgment denying a divorce, plaintiff appeals.
Affirmed.
W. H. Betts, of Hempstead, for appellant.
Merrill & Scott, of Houston, for appellee.
This action was brought by appellant, Alma Sorsby Howell, for divorce from her husband, A. S. Howell, Sr., on the grounds of such cruel treatment and outrages on the part of appellee as to render their living together as husband and wife insupportable. On the trial of the case, appellant testified to numerous acts of cruelty on the part of appellee, including the fact that appellee had cursed and abused her in front of her son, Scott Howell. Appellee answered by a general denial, and on the trial, he either positively denied the acts of cruelty testified to by appellant, or reasonably explained them. No witnesses were called by appellant to corroborate her testimony, and her son, Scott Howell, who was called as a witness by appellee, denied that the acts testified to by appellant had occurred in his presence.
On the trial of the case, a jury, in answer to a special issue submitted, found that the acts and conduct of the defendant toward the plaintiff did not constitute such excesses, cruel treatment or outrages as to render their living together as husband and wife insupportable. Pursuant to this verdict of the jury, the trial court rendered judgment denying the divorce.
It has been uniformly held by the courts of this state that in a divorce case, the trial court is clothed with more discretionary power in determining the sufficiency or insufficiency of the evidence adduced to warrant a decree than perhaps in any other form of action, and that an appellate court may not revise that discretion in the absence of a showing of a clear abuse thereof on the part of the trial court. Lloyd v. Lloyd, Tex.Civ.App., 107 S.W.2d 1047; Scannell v. Scannell, Tex.Civ.App., 117 S. W.2d 538; Blackmon v. Blackmon, Tex. Civ.App., 11 S.W.2d 533.
In the case of Scannell v. Scannell, supra, the court in its opinion said :
In this case, the trial court chose to submit to the jury the one ultimate controlling issue of fact, namely, whether the conduct of appellee toward appellant had been such as to render their living together as husband and wife insupportable, rather than submit each evidentiary fact and then group them himself after the jury had returned its answer. Austin v. DeGeorge, Tex.Civ.App., 55 S.W.2d 585; Service Mutual Ins. Co. of Texas v. Territo et al., Tex.Civ.App., 147 S.W.2d 846; City of Abilene v. Moore, Tex.Civ.App., 12 S.W.2d 604, writ refused. The issue as framed conforms to the basic ground of divorce procedure in divorce trials and the answer thereto is amply supported by the evidence.
Under the rule that in a divorce case the trial court is clothed with more discretionary power in determining the sufficiency or insufficiency of the evidence to warrant the decree than perhaps in any other form of action, the courts are not bound even by the finding of a jury, which are, in divorce cases, only advisory. Scannell v. Scannell, Tex.Civ.App., 117 S.W.2d 538.
In a divorce action the form of the issue submitting the grounds of divorce should not be examined with the critical severity resorted to in other forms of actions to determine whether the opposing party is entitled to have them split up into various evidentiary elements. It should be sufficient that the controlling issues pleaded as grounds of divorce be fairly submitted in the terms in which they are pleaded. Lloyd v. Lloyd, Tex.Civ.App., 107 S.W.2d 1047.
In this case there was a jury finding, amply supported by the evidence, finding, in substance, from a material conflict of the evidence, that the acts and conduct of the defendant toward the plaintiff did not constitute such excesses, cruel treatment, or outrages of such a nature as to render their further living together as husband and wife insupportable.
This finding, after a full hearing on the facts, must be construed as an affirmative finding that there was not such "full and satisfactory evidence" in the record as would authorize the granting of the divorce sought by appellant.
Taking into consideration the type of this case, the finding of the jury, and the rendering of judgment on what we deem to be full and satisfactory evidence, it follows that in our opinion the judgment of the trial court should be in all things affirmed.
Affirmed.
I concur in the conclusion of Chief Justice MONTEITH that no reversible error was committed in the submission of the case to the jury, and that the judgment should be affirmed.
This suit was instituted by Alma Sorsby Howell, appellant, against A. S. Howell, Sr., appellee, in which she sought a divorce on the alleged ground of excesses, cruel treatment, and outrages, on the, part of appellee, of such a nature as to render the appellant's and appellee's further living together, as wife and husband, insupportable.
Appellee answered by general and special denials.
On trial, before a jury demanded by appellee, upon its answer to the first one of what the court submitted as "special issues", to which appellant duly excepted, judgment was rendered denying appellant a divorce; the court independently further found that appellant had brought this suit in good faith, and on probable cause, and awarded a recovery for attorney's fees.
Appellant's motion for a new trial was overruled; and she perfected this appeal.
The appellant at great length and in much detail, inclusive of the dates and locations and periods of time over which the occurrences were alleged to have extended, declared upon such suit for a divorce, pursuant to Section 1, of Article 4629, of Vernon's Revised Civil Statutes, as follows: "(1) Where either party is guilty of excesses, cruel treatment, or outrages toward the other, if such ill treatment is of such a nature as to render their living together insupportable."
She further adduced testimony in support of a large number of her detailed averments of the treatment and course of conduct upon her husband's part that she so declared and depended upon for the establishment of her asserted right to divorce from him, under the quoted statute.
Following submission and oral argument here, this member of the Court has examined the statement of facts brought up with the record reflecting that testimony, and, in the performance of his duty to re-examine the record and the evidence in divorce cases (DeFierros v. Fierros, Tex. Civ.App., 154 S.W. 1067, Caldwell v. Caldwell, Tex.Civ.App., 176 S.W.2d 758, 759 (1), he has concluded that, unmistakably, the testimony appellant so adduced, which was corroborated in at least some material respects, raised issues of fact, which— taken with her stated pleadings for divorce that also properly alleged a cause of action therefor in her behalf—would have supported—if not, indeed, compelled—findings by the jury to the effect that her controlling averments as to such claimed cruel treatment were true.
In this state of the pleadings and testimony, the trial court thus submitted—in so far as deemed material—what it termed "Special Issues" to the jury:
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