Jackson v. Jackson

• Decision Date: 18 June 1971
• Docket Number: No. 17230,17230
• Citation: 470 S.W.2d 276
• Parties: Frances JACKSON, Appellant, v. Juarene JACKSON, Appellee.
• Court: Texas Court of Appeals

Page 276

470 S.W.2d 276

Frances JACKSON, Appellant, v. Juarene JACKSON, Appellee.

No. 17230.

Court of Civil Appeals of Texas,

Fort Worth.

June 18, 1971.

Rehearing Denied Sept. 10, 1971.

L. Clifford Davis, Fort Worth, for appellant.

Yarborough, Yarborough & Hinds, and Roger Turner, Dallas, for appellee.

OPINION

BREWSTER, Justice.

Juarene Jackson, the wife of Ruey E. Jackson, deceased, instituted this suit to recover the death benefits that were payable under a Workmen's Compensation Insurance policy as a result of the death of the said Ruey E. Jackson from on-the-job injuries that were sustained by him.

The defendants in the case were Liberty Mutual Insurance Company, the insurance carrier, and Frances Jackson, the stepmother of the deceased.

After the suit was filed the carrier admitted liability and tendered the death benefits into court. The controversy in the case was between the wife and the stepmother of the deceased, the controlling question being whether or not the wife had at the time of deceased's injuries without good cause and for a period of three years prior thereto abandoned her husband.

The parties recognized that under the facts of this case and under the provisions of Art. 8306, Sec. 8a, Vernon's Ann.Tex.St., the surviving wife, Juarene Jackson, would be entitled to all such death benefits unless she had abandoned the deceased, within the meaning of that statute, for the period of time therein provided. If the wife, Juarene Jackson, had at the time her husband was injured without good cause and for a period of three years prior thereto abandoned the deceased, then under the facts of this case the stepmother, Frances Jackson, would be entitled to all such benefits.

The part of Art. 8306, Sec. 8a, Vernon's Ann.Tex.St., that is applicable here provides: 'The compensation provided for in the foregoing section of this law (relating to death benefits) shall be for the sole and exclusive benefit of the (surviving) * * * wife who has not at the time of the injury without good cause and for a period of three years prior thereto, abandoned her husband, * * * and stepmother, without regard to the question of dependency, * * * the amount recovered * * * shall be distributed among the beneficiaries as may be entitled to the same as hereinbefore provided according to the laws of descent and distribution * * *.'

A jury trial was had. The jury found the issue on abandonment in favor of the wife and the trial court then rendered judgment in favor of the wife awarding her all the death benefits that are in controversy and the stepmother has appealed.

The charge of the court contained the following issue and instruction on the abandonment question:

'Do you find from a preponderance of the evidence that Juarene Jackson, on April 25, 1969, and for a period of three years prior thereto had not abandoned Ruey Edward Jackson?

'Your answer to this question will be either:

"She had not so abandoned Ruey Edward Jackson'

'or

"She had so abandoned Ruey Edward Jackson'.'

The jury answered: 'She had not so abandoned Ruey Edward Jackson.

'In connection with this issue, you are instructed that the word 'Abandoned', as used in this issue, means the act of a wife voluntarily leaving the bed and board of her husband, as a wife, with the intention on her part not to return and live with him as husband and wife, and perform her marital obligations as a wife towards him.'

Appellant's first point is that the trial court erred in overruling her motion for instructed verdict made at the close of plaintiff's evidence, said motion being urged on the grounds that the evidence before the court established as a matter of law that the wife, appellee here, had abandoned the decedent within the meaning of the Workmen's Compensation Law.

As the point indicates, the motion relied upon was made at the close of the plaintiff's evidence. The record shows that after this motion was dictated to the court reporter and overruled by the trial court the appellant did not elect to stand on such ruling, but proceeded at that point to introduce the testimony of her own witnesses. The motion for instructed verdict was never re-urged at any subsequent stage of the trial. Under these circumstances the appellant waived the right to complain of the court's action in overruling the motion. It is settled that where a party moves for an instructed verdict at the close of plaintiff's evidence, and such motion is denied the moving party must stand on the ruling or he waives the alleged error. Texas Construction Rentals, Inc. v. Harrison, 410 S.W.2d 482 (Waco, Tex.Civ.App., 1966, ref., n.r.e.); Travelers Insurance Company v. Arnold, 378 S.W.2d 78 (Dallas, Tex.Civ.App., 1964, no writ hist.); Barrett v. Curtis, 407 S.W.2d 359 (Dallas, Tex.Civ.App., 1966, no writ hist.); Thornhill v. Elskes, 412 S.W.2d 73 (Waco, Tex.Civ.App., 1967, no writ hist.); Orkin Exterminating Company v. Schorsch, 436 S.W.2d 422 (San Antonio, Tex.Civ.App., 1968, no writ hist.); and 56 Tex.Jur.2d 545, Trial, Sec. 205.

For the reasons indicated we overrule appellant's first point.

We overrule appellant's point one for the additional reason that the evidence offered during this trial did not show as a matter of law as contended by appellant that the appellee, wife, had abandoned decedent within the meaning of the Workmen's Compensation Act.

The special issue used in this case and the instruction as to the meaning of 'abandoned' were obviously borrowed from the opinion in the similar case of Associated Employers Lloyds v. Wiggins, 208 S.W.2d 705 (Fort Worth, Tex.Civ.App., 1948, ref., n.r.e.).

The mere separation of the spouses for the required period of time does not constitute an abandonment and such fact does not necessarily lead to the conclusion that there was the intention of abandonment. Besch v. Besch,27 Tex. 390 (Tex.Sup., 1864). The case also holds that this intention must continue throughout the required period of time.

In order to constitute an 'abandonment' the wife charged with 'abandonment' must have voluntarily left the bed and board of her husband With the intention of not returning to live with him as his wife. Associated Employers Lloyds v. Wiggins, supra; Art. 4629, Sec . (2), V.A.T.S. (which statute was in effect at the times involved here); and Ritch v. Ritch, 242 S.W.2d 210 (Dallas, Tex.Civ.App., 1951, no writ hist.). Those cases hold that the intention indicated is an essential element of abandonment.

It is equally well settled in Texas that the appellee cannot be held to have abandoned the decedent if any one of the following facts was present in this case: (1) if her leaving was procured by the husband or done at his request; (2) if the separation of the spouses was by virtue of their mutual agreement; and (3) if she separated from decedent with his consent. This has long been the law in Texas. See Schulz v. L. E. Whitham & Co., 119 Tex. 211, 27 S.W.2d 1093 (1930); 27A C.J.S. Divorce § 38(1), p. 118; 20 Tex.Jur.2d 380, Sec. 34, 'Divorce and Separation'; Bain v. Bain, 252 S.W. 252 (Beaumont, Tex.Civ.App., 1923, no writ hist.); Villarreal v. Villarreal, 263 S.W.2d 819 (Austin, Tex.Civ.App., 1953, no writ hist.); and Miller v. Miller, 306 S.W.2d 175 (San Antonio, Tex.Civ.App., 1957, no writ hist.).

The following is from the opinion in McGowen v. McGowen, 52 Tex. 657 (Tex.Sup., 1880) at page 665: 'To constitute a voluntary abandonment of her husband by Mrs. McGowen, * * * there must have been both the physical act of separation and the mental act or motive which constituted the intention of abandonment.'

And at page 667 of the same opinion the court said:

'To constitute such voluntary separation with intention of abandonment, which would authorize a divorce under the statute, the plaintiff should have neither caused, procured, nor consented to the separation. It should not have been a separation by mutual consent, but should have been a separation with intent of abandonment, under circumstances which would have amounted to a voluntary desertion upon the part of the defendant, without the fault, procurement, or consent of plaintiff, and should have been continued for the length of time required by the statute.'

The Supreme Court reversed the McGowen case, supra, because the trial court did not instruct the jury in substance that there could be no abandonment if the parties agreed to the separation, or if the wife left as the result of the husband's expressed desire that she go, or if the husband consented to the separation.

An 'abandonment' as referred to in the divorce statutes contemplates a voluntary leaving without sufficient cause under such circumstances as to constitute an offensive desertion of the other spouse. Hare v. Hare, 10 Tex. 355 (Sup.Ct., 1853).

We hold that it takes the same conduct to constitute 'abandonment' within the meaning of Art. 8306, Sec. 8a, as it took to constitute an 'abandonment' under the divorce laws (Art. 4629, Sec. (2)). We are convinced that the legislature did not intend to deprive the surviving spouse of death benefits payable under the Workmen's Compensation Law in the absence of conduct on the survivor's part toward decedent that was of such a reprehensible nature as to constitute grounds for divorce under the 'abandonment' section of the divorce statute.

In Doty v. Travelers Ins. Co., 31 F.Supp. 186 (1940) the court says at page 188 of the opinion (referring to Art. 8306, Sec. 8a): 'In passing this statute, it is probable that the Legislature had in mind the Texas Statute making three years abandonment grounds for divorce. Article 4629, Texas Revised Civil Statutes of 1925.' We also are convinced that this statement is correct.

The evidence in this case does not establish as a matter of law any of the following three facts: (1) that appellee's separation from decedent was with the intention of not returning to live with him as his wife; (2) that such separation did not occur with decedent's consent;...