McGowen v. McGowen

• Decision Date: 05 March 1880
• Citation: 52 Tex. 657
• Parties: FLORENCE C. MCGOWEN v. ALEXANDER MCGOWEN.
• Court: Texas Supreme Court

52 Tex. 657

FLORENCE C. MCGOWEN

v.ALEXANDER MCGOWEN.

Supreme Court of Texas.

Mar. 5, 1880.

APPEAL from Harris. Tried below before the Hon. James Masterson.

All the facts of this case material in view of the opinion, will be found stated carefully in the opinion.

Hutcheson & Carrington, for appellant.

I. The evidence sought was clearly res gestæ. (1 Greenl. Ev., secs. 108, 111, and notes; 1 Phil. Ev., 5th ed., p. 151, marg. p. 187, and notes 3, 4, 80; 2 Bouv. Law Dic., p. 467; Lund v. Inh. of Tyngsborough, 9 Cush., 42, 43; Walton v. Green, 1 Carr & P., 621.)

II. The separation in this case was not an isolated circumstance, but was essentially one of many and continuing acts, and the visits to Messrs. Crosby and Hill were a part of the separation. It was then discussed by both parties, and the agreement to pay her $40 a month was then assented to, and all said to them on the subject was a part of the res gestæ. (1 Greenl. Ev., sec. 108; Lund v. Inh. of Tyngsborough, 9 Cush., 48; Mitcham v. The State, 11 Ga., 615; Handy v. Johnson, 5 Md., 450.)

III. The third and fifth questions to Hill were perfectly good. Whether his statement and conduct were a part of the res gestæ or not, still they were legitimate testimony as admissions against him. (1 Greenl. Ev., secs. 169-175.)

IV. The charge of the court is composed of confusing, if not incomplete sentences, and the special instruction asked was necessary to instruct the jury as to the effect of any consent of plaintiff to the separation.

The charge given was calculated to lead them to understand that, under certain circumstances of offensiveness, a consent by plaintiff was no bar to recovery. (Bast v. Alford, 20 Tex., 229.)

V. The charge of the court was calculated to make the jury believe that they must find for plaintiff or defendant an affirmative verdict on their pleadings, weighing which was true and deciding between them. The form of the verdict dictated for the defendant was clearly erroneous, and misled the jury. (Love v. Wyatt, 19 Tex., 312.) [The charge objected to will be found in the opinion.]

VI. The court had nowhere instructed the jury as to the effect of plaintiff's consent to the separation, or his contributing to its continuation by supporting her during her absence, and there was evidence sufficient to have submitted this to their consideration, notwithstanding the amount excluded. (Smithwick v. Andrews, 24 Tex., 494;Chamblee v. Tarbox, 27 Tex., 146.)

Jones & Garnett, for appellee.

I. The acts and declarations of the defendant, not made in the presence and hearing of plaintiff, are not admissible as evidence against him.

II. Neither party to a suit will be permitted to manufacture evidence in his own behalf, by the introduction in evidence of his own acts and declarations, made in his own favor and against the opposite party.

III. It is the duty of a witness to state facts, and not deduce conclusions or inferences from facts. The answers to the third, fourth, and fifth questions to Crosby, and to the first, third, and fifth questions to Hill, were properly excluded, because they sought the opinion or conclusions of the witness, and not facts (1 Greenl. Ev., sec. 434, p. 507.)

IV. The charge of the court is full and explicit on all material questions made by the pleadings and evidence. It informed the jury that the law did not contemplate a separation by agreement and consent of parties with a view of obtaining a divorce; that abandonment of plaintiff by defendant for three years, would not entitle plaintiff to a divorce unless such abandonment was under the circumstances of offensiveness, as alleged in plaintiff's pleadings, and that the law does not allow or permit parties to voluntarily separate with a view of bringing suit for divorce. The charge embraced all the law applicable to the case, and the special instruction was properly refused. (Robinson v. Varnell, 16 Tex., 386;Norvell v. Oury, 13 Tex., 32; Davis v. Loftin, 6 Tex., 47; Able v. Lee, 6 Tex., 427.)

V. The charge of the court set out by appellant under the third assignment of error was proper and legal, was altogether in appellant's favor, and was not calculated to make the jury find their verdict upon the pleadings of either party, except in so far as they were supported by the evidence.

A verdict such as the one dictated by the court would have been, in substance and in effect, a verdict for defendant. (Hollingsworth v. Holshousen, 17 Tex., 47;Case v. Jennings, 17 Tex., 674;Hubby v. Stokes, 22 Tex., 220;Mills v. Ashe, 16 Tex., 304;Hassell v. Nutt, 14 Tex., 266.)

BONNER, ASSOCIATE JUSTICE.

This suit was instituted by appellee, Alexander McGowen, against appellant, Florence C. McGowen, on March 15, 1879, asking a divorce on the ground of abandonment for three years.

The defendant pleaded that the separation between her and plaintiff was through plaintiff's procurement and by his consent, and under an agreement that plaintiff would pay defendant $40 a month during the separation, and that she had always been willing to return to her husband.

Verdict and judgment awarding divorce to plaintiff; motion for new trial overruled, and defendant has perfected an appeal to this court.

The first error assigned is, that “the court erred in sustaining the exception of the plaintiff to the questions of defendant propounded to the witnesses J. F. Crosby and E. P. Hill, and in excluding the said questions and not permitting them to be answered.”

On the trial, witness J. F. Crosby testified that, “a few days before the separation, defendant came to him and seemed to be in great distress; was crying, and informed him of trouble between her and her husband”; and at this point the witness was asked the following questions, which were excluded by the court:

“1. On her coming to you about the disagreement in the family, what did she say Judge McGowen told her about leaving or being permitted to stay at his house?

2. In her manner and in what she said, did she manifest a disposition to quit plaintiff of her own accord, or to remain with him if desired by him?

3. Did she tell you that she was on the eve of a separation from her husband, to which she was opposed and on which he insisted?

4. Did her manner indicate that she was distressed and opposed to the separation, or not?

5. Did her manner indicate that she was acting under compulsion and in distress consequent thereto, or that she was voluntarily disposed to do what she said, and what seemed to be imminent?

6. Did you tell her that she should return to her husband, and did she seem to be happy to do so, or the contrary?”

Witness E. P. Hill testified: “On the evening before the separation, as he understood it to have taken place, defendant came to his office and stated the trouble in the family; said she would bring her husband; that a short while afterwards plaintiff came to his office, when he said, alluding to the trouble between himself and wife, that there was a necessity that they should separate; called his wife Florence; said he did not have any complaint against her, but it was necessary they should separate, and he would pay her $40 a month; did not say whether the separation was at his instance or not, but recognized the necessity.”

Here the following questions were asked this witness and excluded:

“1. When defendant came to you and talked about the separation, did she seem to be in great distress at the separation?

2. Did she express a want of consent to the separation, or otherwise?

3. Did Judge McGowen, in his interview with you about the separation, when brought to your office by his wife, treat the separation as one which he was producing or procuring, or one that he was opposing?

5. While you do not recollect the language used by him, was the effect of what he said such as to satisfy you that the separation was with or against his consent?”

The eighth error assigned is, that “the court erred in excluding the third, fourth, and fifth questions asked Mrs. M. H. Abbey, as shown in bill of exceptions.”

Frank McGowen testified that when appellant decided to go, she asked him to carry her to her mother, Mrs. M. H. Abbey, and he did carry her directly from the house of appellee to her mother's house, and left her there.

Mrs. Abbey testified for defendant, and the following questions were asked and excluded:

“3. When your daughter came home on the evening of the separation, what did she say about her coming home; for what purpose did she say she had come; who did she say sent her, or did she say she came of her own accord?

4. Did she, during her separation, state that its inception and continuation had a cause; and if so, what did she state was the cause; and what did she state about the consent of herself or the compulsion of her husband in the matter, if anything?

5. When your daughter came home, was she in great affliction, and did she state what produced her affliction and what occasioned her coming home?”

The above two alleged errors will be considered together. It is contended by appellant that the testimony sought to be elicited by these questions was part of the res gestæ, and should have been admitted.

There was no objection to the form of the questions, or that by some of them the conclusion of the witness was sought, but in the bill of exception the court states that “the objection to the evidence offered and excluded was, that it was not competent for a party to introduce his declarations in his own favor, thus to manufacture evidence.”

The distinction between declarations which are objectionable as hearsay and those which are admissible as original testimony, because part of the res gestæ, is often attended with much doubt and difficulty, as was most forcibly illustrated in the singular instance of disagreement among eminent judges in the case of Wright v. Tatham, 5 Clark & Fin., 670, cited in Lund v. Inh. of Tyngsborough, 9 Cush., 44.

The doctrine is more generally applied to that class of cases, like the one...