Howell v. Howell, A-1562.
Citation | 210 S.W.2d 978 |
Decision Date | 07 April 1948 |
Docket Number | No. A-1562.,A-1562. |
Parties | HOWELL v. HOWELL. |
Court | Supreme Court of Texas |
W. H. Betts, of Hempstead, for appellant.
Merrill & Scott, of Houston, for appellee.
This is a divorce suit in which questions of law have been certified to us under the provisions of Rule 463, Texas Rules of Civil Procedure. The plaintiff's petition alleged as grounds for divorce that the defendant had been guilty of cruel treatment, under Subdivision (1) of Article 4629, Vernon's Annotated Civil Statutes. The district court submitted the case to the jury upon special issues, and upon the return of a verdict favorable to the defendant, the district court entered judgment refusing the divorce. Upon appeal the majority of the Court of Civil Appeals were of the opinion that the judgment should be affirmed, but Judge Graves dissented. 206 S.W.2d 616.
The disagreement between the judges of the Court of Civil Appeals related to the sufficiency of the first special issue submitted by the district court to the jury, which read as follows: "Do you find from a preponderance of the evidence that the acts or conduct of the defendant toward the Plaintiff, if any, constituted such excesses, cruel treatment or outrages of such a nature as to render their further living together as husband and wife insupportable, as that term is hereinafter defined in this charge?"
The certificate of the Court of Civil Appeals states that "the controlling difference on questions of law between the members of this Court was whether or not the trial court had committed reversible error in submitting the cause to the jury upon the single inquiry of whether or not the acts and conduct of the husband toward the wife, if any, had constituted such excess, cruel treatment or outrage of such a nature as to render their further living together as husband and wife insupportable, it being the conclusion of the majority that that inquiry embodied the only material issue in the cause under R.S. art. 4629; whereas the dissenting member took the view that the wife had been entitled, under the facts, to have the jury also pass upon whether or not the various acts and conduct she declared upon as constituting such cruel treatment as giving her the right to a divorce under that statute had occurred."
The questions submitted to us are as follows:
In our opinion the special issue quoted above and referred to in the first question is a sufficient submission of the ultimate issue of fact to be passed on by the jury. While there have been no decisions of this Court on this question, it appears from the opinions of Courts of Civil Appeals in a number of cases that substantially the same form of special issue as that submitted by the district court in this case has been used in other cases where the same ground for divorce was alleged. In some cases the correctness of this form of submission was not passed on. See Grisham v. Grisham, Tex. Civ.App., 185 S.W. 959; Deebs v. Deebs, Tex.Civ.App., 164 S.W.2d 758, 759; Ballard v. Ballard, Tex.Civ.App., 186 S.W.2d 294. In Kyle v. Kyle, Tex.Civ.App., 55 S.W.2d 885, (writ dismissed), the special issue submitted was similar to the issue submitted in this case, and the Court of Civil Appeals indicated its approval of the form of submission, although it also gave an alternative ground for its holding. In Rogers...
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