Murchison v. Murchison

• Decision Date: 26 November 1914
• Docket Number: (No. 1359.)
• Citation: 171 S.W. 790
• Parties: MURCHISON v. MURCHISON.
• Court: Texas Court of Appeals

171 S.W. 790

MURCHISON v. MURCHISON.

(No. 1359.)

Court of Civil Appeals of Texas. Texarkana.

November 26, 1914.

Appeal from District Court, Cherokee County; L. D. Guinn, Judge.

Action by A. J. Murchison against Mary Murchison for divorce. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Norman, Shook & Gibson, of Rusk, for appellant. Perkins & Perkins, of Rusk, for appellee.

WILLSON, C. J.

This appeal is from a judgment granting appellee, plaintiff below, a divorce from appellee, on the ground that she had been guilty of such cruel treatment of him as to render their living together insupportable.

Appellant insists the testimony was not sufficient to support the judgment, and, as we think this contention must be sustained, it will not be necessary to consider other questions made by assignments in the briefs.

It seems from the testimony that the parties had been married about two years at the time of the trial in the court below. Each of them had been married before, and appellant then had a daughter about five years old, and appellee had five children then living with him — three sons, aged, respectively, 13, 19, and 22 years, and two daughters, aged, respectively, 9 and 11 years. Testifying as witnesses, the parties agreed they got along together pleasantly enough during the first six or eight months following their marriage, but that thereafterwards, until June 23, 1913, when they separated, they did not always get along together so pleasantly. According to appellee's account of it, his refusal to sell his home in Cherokee county and move to Houston county, where appellant's mother lived, and appellant's mistreatment of his children, were the causes of the disagreements between them. According to appellant's account of the matter, the unpleasantness between them was due to appellee's children's mistreatment of her and his refusal to do anything to protect her from such mistreatment. The specific act of appellant, relied upon as sufficient to support the finding that she had been guilty of such cruel treatment of appellee as to warrant the relief granted to appellee, was her conduct in whipping appellee's youngest daughter, Mattie, three or four weeks before the parties separated. According to the child's account of the incident, appellant, without cause for so doing, whipped her so severely with a peach-tree limb about three feet long and as large as the tip of her little finger, as to cut a place two or three inches in length on one of her legs and another place about as long on one of her hands, deep enough to cause same to bleed profusely, and then threatened to beat her to death if she told any one about it. The child, however, told appellee about the whipping administered to her on the day it occurred, and exhibited to him the wounds she claimed appellant had inflicted on her person. Appellee said nothing to appellant about the matter during the three or four weeks they lived together after the time the child was subjected to the whipping. He gave as a reason why he did not mention it to appellant that the child had requested him not to let appellant know she had told him of the incident. His account of what occurred at the time they separated was as follows:

"The morning we separated my little son spoke something about going to see my married daughter, and I just made the remark that `I sorter look for them over here to-day,' and my wife blated out that `she didn't want them to come over here; that she had somewhere to go.' Well, she never had mentioned going to me. When she said that — s...