McGlothlin v. McGlothlin
Decision Date | 12 January 1972 |
Docket Number | No. 15033,15033 |
Citation | 476 S.W.2d 333 |
Parties | Peggy Mitchell McGLOTHLIN, Appellant, v. General William C. McGLOTHLIN, Jr., Appellee. |
Court | Texas Court of Appeals |
Pat Maloney, San Antonio, for appellant.
Eugene B. Sisk, Sisk & Van Voorhis, Universal City, for appellee.
This is a suit for damages by the plaintiff, Peggy Mitchell McGlothlin against General William C. McGlothlin, Jr., the ex-husband of plaintiff, and his present wife, Jeanette Caviness McGlothlin, for alienation of affection, criminal conversation and loss of consortium. The trial court granted plaintiff's motion to sever her cause of action against Gen. McGlothlin from the cause of action against Jeanette Caviness McGlothlin. Thereafter, Gen. McGlothlin filed a motion for summary judgment, wherein he asserted that under the laws of this State no cause of action exists against him as a matter of law. This motion based upon the pleadings was granted by the trial court, and a take-nothing judgment entered on plaintiff's suit against her former husband.
Plaintiff presents two points of error: (1) the trial court erred in granting a summary judgment for Gen. McGlothlin, because the allegations of plaintiff's original petition state a cause of action against him for breach of the marital contract, and there are bona fide questions to be determined at a trial on the merits; and (2) the trial court erred in granting summary judgment for Gen. McGlothlin, because the allegations of plaintiff's original petition state a cause of action in tort against him for alienation of affections and criminal conversation, which present bona fide questions to be determined at a trial on the merits.
Plaintiff concedes that it is now the established law of this State that one spouse is not entitled to maintain a tort action against the other. Turner v. Turner, 385 S.W.2d 230 (Tex.1965); Nickerson and Matson v. Nickerson, 65 Tex. 281 (1886); Rader v. Rader, 378 S.W.2d 371, 373 ( ); 1 Latiolais v. Latiolais, 361 S.W.2d 252 (Tex.Civ.App.--Beaumont 1962, writ ref'd n.r.e.); Crawford v. De Long, 324 S.W.2d 25 (Tex.Civ.App.--Austin 1959, writ ref'd n.r.e.); 30 Tex.Jur.2d, Husband & Wife, Section 145, page 234. This rule was reaffirmed by the Supreme Court in Turner v. Turner, supra, wherein it was said:
'The tort inflicted upon the wife by the husband and another, gave no right of action to the wife against the husband.'
'Again:
'Whatever cause of action the wife had, accrued when the acts of which she complains were committed; and the fact of divorce subsequently granted, can not make that a cause of action which was not so at the time the facts transpired.'
Nor has this State ever recognized a cause of action by one spouse against the other for criminal conversation or loss of consortium. 2 The case most directly in point is Gowin v. Gowin, 292 S.W. 211, 212 (tex.Com.App.1927), in which the Court stated that the question involved was: 'Does breach of the marital obligations by one spouse give rise to a justiciable right in the other of such nature as that the one may sue for, and recover, damages from the other as for breach of contract, in the absence of a divorce or prayer therefor?' The Commission of Appeals held that the wife had no cause of action against her husband for breach of marriage contract in the absence of divorce or prayer therefor. The Court, after stating that some states have adopted statutes expressly permitting recovery for torts committed by the husband, stated:
This holding, although criticized, 3 has never been overruled by a Texas court, nor has the legislature seen fit to create such a cause of action. In fact, we have not been cited or found a case by any jurisdiction recognizing a cause of action by one spouse against the other for criminal conversation or loss of consortium.
Here a divorce has been granted between the parties and the property rights of said parties settled by such decree. Since such a cause of action did not exist during the marriage, we...
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