Norris v. Stoneham

• Court: Texas Court of Appeals
• Writing for the Court: Hickman
• Citation: Norris v. Stoneham, 46 S.W.2d 363 (Tex. App. 1932)
• Decision Date: 08 January 1932
• Docket Number: No. 937.,937.
• Parties: NORRIS v. STONEHAM.

46 S.W.2d 363

NORRIS v. STONEHAM.

No. 937.

Court of Civil Appeals of Texas. Eastland.

January 8, 1932.

Rehearing Denied February 12, 1932.

Appeal from District Court, Mitchell County; Chas. C. Thompson, Special Judge.

Action by Mrs. H. W. Stoneham against Pearl Norris. From judgment for plaintiff, defendant appeals.

Affirmed in part, and reversed in part and remanded.

W. H. Garrett, of Colorado, Tex., and C. L. Hailey, of Abilene, for appellant.

J. A. Johnson, of Stephenville, for appellee.

HICKMAN, C. J.

Recovery was had below on two severable causes of action. We shall first make a statement of the case applicable to one of these, and, after considering it, shall make an additional statement applicable to the other. Appellee, Mrs. H. W. Stoneham, is a married woman. She instituted this action in her own name, without being joined by her husband, against appellant, Mrs. Pearl Norris, an unmarried woman, for damages alleged to have been sustained by her on account of the alienation of her husband's affections. Her petition charged, in substance, that, beginning in the month of July, 1928, and continuing up to the date of the filing of the petition, the defendant (appellant), contriving and wrongfully intending to injure the plaintiff (appellee), and to deprive her of the comfort, society, aid, and support of her husband, and to alienate and destroy his affections for her, has unlawfully and unjustly, through her wiles and blandishments toward him, ingratiated herself into his affections, and has completely gained his affections for herself to the exclusion of plaintiff, and has persuaded, procured, and enticed him to abandon her and leave her home, and to live with the defendant, whereby and on account of such unlawful, willful, and malicious acts on the part of the defendant toward the plaintiff, she (the plaintiff) has lost the comfort, society, aid, assistance, love, and support of her husband and his affections for her have been wholly alienated. The case was tried below before the court without the assistance of a jury, resulting in a judgment on this phase of the case in favor of appellee against appellant for $3,000. In deciding the issues presented we have not had the benefit of many decisions in our own jurisdiction. Few cases of this character have reached the appellate courts of Texas.

The first question for decision is whether appellee had the right to institute and maintain the suit in her own name, without a showing, either that she had been divorced from her husband, or that proceedings for divorcement had been instituted. There is no statute in Texas expressly authorizing the prosecution by the wife of a suit of this nature, and the argument is advanced that, since the fiction of marital unity barred her right to prosecute an action alone at common law, it follows that, absent an express enabling act, the right to maintain the action does not exist in Texas. Is the common law on the subject of marital rights, in the absence of statutory regulations to the contrary, in force in Texas? Chief Justice Gaines answered that inquiry in Barkley v. Dumke, 99 Tex. 150, 87 S. W. 1147, in this language: "The title of the act of January 20, 1840, entitled `An act to adopt the common law of England, to repeal certain Mexican laws, and to regulate the marital rights of parties,' indicates that the rights of married persons were to be defined by statute, and not to be governed by the rules of the common law. The provisions of the act with reference to married persons are so inconsistent with the rules of the common law as to show an intention to maintain in reference to marital rights a radically different system. The fact that these provisions were incorporated in the act which adopted the common law is of itself significant of the purpose of the Legislature not to apply the rules of the common law as to the property rights of husband and wife. In this connection it is notable also that the statutory rules which were adopted are taken in the main from the Spanish law, which then prevailed in the republic. So striking is this fact as to justify Chief Justice Hemphill in saying, in Burr v. Wilson, 18 Tex. 370: `Our laws on marital rights are in substance but a continuation of the rules of Spanish jurisprudence on the same subject-matter'; and again, in Bradshaw v. Mayfield, 18 Tex. 29: `But the common law is not, and never has been, of force in this state on the subject of marital rights.'"

But, even if we have adopted the common law as to the right of a married woman to maintain a suit of this character, the common law which we adopted was not the common law of England as it existed in 1840. As is clearly pointed out by Chief Justice Brown in the case of Grigsby v. Reib, 105 Tex. 597, 153 S. W. 1124, 1125, L. R. A. 1915E, 1, Ann. Cas. 1915C, 1011:

"* * * `The common law of England,' adopted by the Congress of the republic, was that which was declared by the courts of the different states of the United States. * * * If we adopt that as our guide and source of authority, the decisions of the courts of those states determine what rule of the common law of England to apply to this case.

"The effect of the act of 1840, supra, was not to introduce and put into effect the body of the common law, but to make effective the provisions of the common law, so far as they are not inconsistent with the conditions and circumstances of our people. Land Co. v. McClelland Bros., 86 Tex. 185, 23 S. W. 576, 1100, 22 L. R. A. 105."

When resort is had to the decisions of the highest courts of the several states of the United States to determine the rule of common law, as declared by these courts, a conflict is disclosed. In most of the states enabling statutes have been enacted, but, as stated in 30 C. J. § 873, p. 1120: "On the other hand the rule has been stated independently of any statute that a married woman has a right of action for such a tort enforceable by suit in her own name without joinder of her husband as plaintiff."

This statement in the text is well supported by the authorities cited. Among the later cases to the same effect is Shalit v. Shalit, 126 Me. 291, 138 A. 70.

Were this a question of first impression in our state, with no decisions indicating which line of the conflicting decisions our courts have favored, we should, in view of the conflict in other jurisdictions, feel at liberty to adopt that line of decisions "not inconsistent with the conditions and circumstances of our people." Grigsby v. Reib, supra. The better reason, we think, supports the right of a married woman to maintain the action. To deny her that right would amount, in many cases, to a denial of any redress for her injuries. The husband could not maintain the suit. His connection with the wrong would bar him. Since the husband cannot join, she must sue alone or not at all. Many women have religious scruples against divorce. To deny such a woman the right to maintain the action except on condition that she first procure a divorce would be a literal denial of a remedy for a wrong.

We also think her right to sue is supported by the authorities in our state. The following decisions, among others, while not directly deciding the question, are persuasive, and indicate the trend of our decisions: Nickerson et al. v. Nickerson, 65 Tex. 281; Davis v. Davis (Tex. Civ. App.) 186 S. W. 775; Burnett v. Cobb (Tex. Civ. App.) 262 S. W. 826.

In Speer's Law of Marital Rights in Texas (3d Ed.) § 109, p. 146, the question is carefully considered and this conclusion is drawn: "While with us there is no express enabling statute authorizing a wife to maintain such an action, yet it is not thought that such a statute is necessary, as the rules of the common law have not been incorporated in our marital system, but their rigor has been greatly relaxed, and they are in many instances directly antagonistic to the well-defined rules of our later marital jurisprudence."

Section 110 of this same work was added in the third revision, and it is there stated that the question has now been directly decided by our courts. It would seem that Smith v. Womack (Tex. Civ. App.) 271 S. W. 209, should be regarded as an authority for maintaining the action. A writ of error was refused in that case. The court there sustained the wife's right to an injunction to prevent another woman from meeting and conversing with her husband. We think the same reason that would authorize her suit for injunction would authorize one for damages on account of the alienation of affections. We therefore conclude that, upon reason and authority, the appellee had the right to maintain her suit as brought.

It is insisted that the evidence is insufficient to support the judgment in that it fails to establish that appellant was the active cause of the alienation of the affections of appellee's husband. Neither Stoneham, Mrs. Norris, nor any other witness testified in her behalf. All of the...