McNabb v. McNabb

• Decision Date: 14 March 1923
• Docket Number: (No. 2047.)
• Citation: 250 S.W. 434
• Parties: McNABB v. McNABB.
• Court: Texas Court of Appeals

250 S.W. 434

McNABB v. McNABB.

(No. 2047.)

Court of Civil Appeals of Texas. Amarillo.

March 14, 1923.

Rehearing Denied April 4, 1923.

Appeal from District Court, Oldham County; Reese Tatum, Judge.

Action for divorce by C. M. McNabb against Ivey E. McNabb. Judgment for plaintiff, and defendant appeals. Affirmed.

Veale & Lumpkin, of Amarillo, and Culton & Taylor, of Tulia, for appellant.

Underwood & Jackson, Adkins & Kimbrough, and Chas. H. Keffer, all of Amarillo, for appellee.

BOYCE, J.

On original statement this case fell to the lot of the Chief Justice. The other members of the court being unable to agree to the conclusions reached by him, the task of stating the conclusions of the majority has been assigned to the writer.

This is a divorce case and this is the second appeal therein. See 207 S. W. 129. The case was tried at the last trial on the same pleadings, and the facts are largely the same as on the former appeal. We refer to the opinion on such appeal for a general statement of the case and of the law which is to govern its decision.

On the last trial the case was again submitted to the jury on a general charge, and the verdict and judgment was again for the plaintiff. We are agreed that the charge of the court on the last trial was a fair presentation of the law of the case; our disagreement being as to the sufficiency of the evidence to sustain the verdict of the jury. There was no evidence of physical violence and our disagreement is as to: (1) Whether the acts charged as grounds for divorce show a studied and deliberate purpose on the part of the defendant to injure the plaintiff; (2) whether the physical and mental condition of the defendant was such as to render her irresponsible for her acts; (3) whether these acts were of such nature as to render the further living together of the plaintiff and defendant insupportable.

The plaintiff and defendant lived together as man and wife for less than a year. The evidence warrants the conclusion that this period was one of almost constant domestic turmoil and infelicity; that defendant neglected her household duties, leaving these to be performed largely by the plaintiff, who was a farmer, and his children by his former wife; that defendant neglected these small children and was at times very illtempered, harsh, and violent in her treatment of them; for instance, on one occasion she seized a folding hat rack and broke it over the head of plaintiff's six year old son; she nicknamed plaintiff's daughter, Ruth, eight years old, "Lazy Lize." Many of the acts of misconduct referred to in the record were in their inception exhibitions of uncontrolled temper and petulence, resulting from some real or fancied provocation or slight, and, if these had been the end of her misconduct, would have afforded no grounds for divorce; but it appears that on many such occasions defendant would go to bed and remain there frequently for several days at a time, and on one occasion for two weeks. We refer to one such instance: Plaintiff's father, mother, and sister were visiting at his home. Defendant, without just cause, became angered with the plaintiff, treated him and his relatives with marked discourtesy, went to bed, and stayed there until his relatives brought their visit to an end. At times she would refuse to take food and on one occasion went on a "hunger strike," declaring that she was going to starve herself to death. On another occasion she bought poison, and, according to the testimony of the attendant physician, simulated symptoms to indicate an attempt at suicide. The evidence warrants the conclusions that plaintiff was patient and forbearing with the defendant until toward the end of their married life and until he made up his mind and informed her that he intended to separate from her. Thereafter on occasions he did not treat her with much sympathy or consideration. The jury probably found that his patience had been exhausted and excused him for these acts. These repeated spells of sulking in bed on the slightest irritation sufficiently indicated a deliberate purpose on the part of the defendant to injure the plaintiff. If the defendant was responsible for her acts, we think the jury were warranted in finding that they constituted the "excesses, cruel treatment or outrages" mentioned in the statute.

As to the defendant's responsibility the evidence tends to show that from childhood defendant had been subject to periodic spells of nervousness and ill temper. Dr. Allison. who treated her in his sanitarium for nervous and mental diseases, testified that she had pellagra; was mentally sick; "could not control herself and was not responsible for her acts." Dr. Vineyard, who saw defendant once in consultation, shortly before she went to Allison's sanitarium, testified that she did not have pellagra. He said:

"I considered her to be only a neurasthenic, and that her trouble was entirely domestic, she being a neurasthenic."

Dr. Collins, who attended her on several occasions and saw her just before she went to Allison's sanitarium, testified that the defendant had no symptoms of pellagra; that the term "neurasthenic"—

"is loosely employed to represent almost any condition from the slightest nervous irritation clear down to insanity and the term would mean little within itself. I found nothing in Mrs. McNabb that would authorize me to say from my examination that she was a neurasthenic in any degree, but she was somewhat nervous, and I would call it nervous excitement or nervousness, and not true neurasthenia. * * * She was a shamming neurasthenic. * * * I did not find any evidence of insanity or dementia."

The question of responsibility was submitted to the jury, and the verdict indicates that they found that plaintiff was responsible for her acts. There is a presumption of responsibility, and, while the evidence would sustain a finding that defendant was not at times responsible for her acts, we are not prepared to say that the evidence is so conclusive as to warrant us in setting aside the verdict of the jury on this ground.

Plaintiff testified that defendant's conduct was rendering his life and that of his children miserable and was breaking up his family; that one of the boys, 14 years old, was threatening to leave home; that he was very much worried by these conditions, was losing sleep, and his mental and physical condition generally impaired. We think the evidence supports the finding that the further living together of the plaintiff and defendant had been rendered insupportable by the acts of the defendant.

Two juries have, on hearing the facts, decided the issues in plaintiff's favor. The trial court has on each occasion approved the finding. We do not think that we should set aside this last verdict and judgment rendered on a fair submission of the law of the case.

The judgment is therefore affirmed.

HALL, C. J.

I respectfully dissent from the majority in affirming the judgment below. The case was tried the last time without an amendment by either party of their pleadings. The evidence introduced by the appellee to sustain the allegations upon which he bases his action for divorce were in no degree strengthened upon the second trial. In the former opinion Huff, C. J., says:

"The rule in this state, as well as in others, is that parties cannot be divorced for incompatibility, or because they live unhappily together, or merely because they possess unruly tempers, or for marital wranglings. If the acts of appellant were only from sudden outbursts of temper, the acts complained of would not have authorized a divorce; or if any such acts were the result of sudden temper, and not intended to injure the appellee, the jury should have been told to disregard them. The acts in this case were not within themselves cruel. They were only so if they were willful, and for the studied purpose of inflicting injury upon the appellee. The acts must have arisen from a motive to cause suffering to the appellee."

The rule as stated by Huff, C. J., is sustained by reason and the great weight of authority. Where the conduct complained of as being cruel is not accompanied with violence or threats of personal injury, even though it may result in mental pain or distress, the courts, with practical unanimity, hold that, before it can be considered as a basis for dissolving the marriage, it must appear that such conduct was studied, willful, and deliberate. 19 C. J. 46, § 83; Sheffield v. Sheffield, 3 Tex. 79; Sharman v. Sharman, 18 Tex. 521; Dawson v. Dawson, 63 Tex. Civ. App. 168, 132 S. W. 379. The case was reversed before because this and other material issues were not submitted to the jury. Upon the former trial the appellant seems to have defended upon the theory that violence or threats to inflict personal injury were necessary to constitute cruelty. This theory was not sustained in the former opinion. Upon the last trial there was considerable additional evidence introduced bearing upon the issue of willfulness and showing that the acts complained of were not deliberate, but were the result of the appellant's physical and mental condition, and I think this evidence is conclusive against an affirmance of the judgment. Notwithstanding this testimony, the effect of the general verdict is that the conduct charged by appellee was for the studied purpose of inflicting suffering upon him, and the decree against her implies not only that her conduct was cruel, but that it is of such a nature as to render their living together insupportable to the appellee. The action is based upon the first subdivision of article 4631, V. S. C. S., providing that a divorce may be decreed:

"1. Where either the husband or wife 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."

The appellant vigorously attacks the verdict and judgment because the evidence does not...