Rhodes v. Meloy

• Court: Texas Court of Appeals
• Writing for the Court: Littler
• Citation: Rhodes v. Meloy, 289 S.W. 159 (Tex. App. 1926)
• Decision Date: 03 December 1926
• Docket Number: (No. 239.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: RHODES v. MELOY.

289 S.W. 159

RHODES v. MELOY.

(No. 239.)^*

Court of Civil Appeals of Texas. Eastland.

December 3, 1926.

Rehearing Denied December 31, 1926.

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Appeal from District Court, Eastland County; Elzo Been, Judge.

Action by J. P. Meloy against C. J. Rhodes. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Scott, Brelsford, McCarty & Brelsford, of Eastland, for appellant.

J. R. Stubblefield, of Eastland, for appellee.

LITTLER, J.

This is a suit for alienation of affections instituted in the court below by J. P. Meloy, appellee, against C. J. Rhodes, appellant. Appellee alleged in his petition that appellant had room and board in appellee's home, and, while living there, had made love to appellee's wife, Anna Katherine Meloy, and had alienated her affections. Appellee further alleged that appellant had made certain trips to Kansas City, Mo., and to Juarez, Mexico, and had there been guilty of immoral conduct with appellee's wife. The prayer was for actual damages for alienation of his wife's affections in the sum of $100,000.

Defendant answered by general demurrer and special exceptions, a general denial, and in turn filed a cross-action against appellee, which was withdrawn before the case was submitted to the jury, and need not be considered here.

The pertinent facts of the case will be fully stated in connection with our discussion of assignments of error.

The case was submitted to the jury on special issues, and a verdict was returned upon which the court rendered judgment for appellee in the sum of $15,000, to which judgment of the court appellant gave notice of appeal, and the cause is now before this court for review. This case is before us on seventy-four assignments of error, which will be discussed in their order.

The second assignment of error complains of the court's refusal to suppress the ex parte depositions of the defendant, C. J. Rhodes, and motion setting up that the notary public before whom same was taken was not impartial and disinterested. The testimony, in connection with said motion, shows that the notary public had been engaged in securing testimony on behalf of appellee in connection with a similar case pending in the Masonic lodge against appellant. It has long been recognized as the rule in Texas that the officer taking the deposition of a witness should stand impartial between the parties (Rice v. Ward, 93 Tex. 532, 56 S. W. 747; Blum v. Jones, 86 Tex. 492, 25 S. W. 694), and we do not wish to be understood as departing from the rule laid down in those cases as cited by appellant. However, even though some evidence was submitted raising the issue that the notary was not impartial in the matter, we believe that the action of the trial court was correct in holding that the notary was not disqualified and in overruling the motion to suppress said deposition, and the assignment is therefore overruled.

Appellant's assignments of error Nos. 7, 8, 10, 12, 13, and 14 complain of the overruling of special exceptions to plaintiff's petition. These assignments are all overruled, for the reason that the error, if any, was harmless.

Appellant's sixteenth assignment of error complains of the admission of certain testimony. Appellee's counsel asked this question of the witness, Mrs. Anna Katherine Meloy, testifying on direct examination for appellee, "Directing your attention to the question as to whether or not Rhodes made any statement about Meloy and his personal appearance, now state what the facts are in that connection." This was objected to as leading and suggestive. A question which merely directs the attention of the witness to a particular transaction without suggesting the answer is not leading, and the assignment is therefore overruled.

The thirty-fifth and thirty-sixth assignments of error complain of the admission of certain testimony of appellee's witness, Mrs. T. J. Pressler, to the effect that she sold one Koontz certain draperies. It appears that appellant's witness had previously testified that Mrs. Meloy, appellee's wife, had stated that she had "arranged" the draperies for the shack in which Koontz was living, the evident purpose of such testimony being to show that Mrs. Meloy had been intimate with other men. Appellant strongly urges here that such testimony does not rebut that of appellant's witnesses, and could only serve to divert the minds of the jury from the question raised as to intimacy between Mrs. Meloy and Koontz. We think it true that such testimony does not rebut that offered by appellant, but we consider the error harmless, and the assignments are therefore overruled.

We now come to a consideration of those assignments of error, for which we think this cause must be reversed and remanded to the trial court.

Appellant's thirty-seventh, thirty-eighth, forty-first, forty-second, and forty-sixth assignments of error all complain of the exclusion of the testimony of witness as to remarks made by Mrs. Meloy with reference to the relations which existed between her and her husband, and between her and appellant, and will all be considered together.

The appellant offered the testimony of the witness V. R. Shurmon to the effect that Mrs. Meloy had stated that "She would reach Rhodes. If she couldn't reach him directly, that she would reach him indirectly through his children back home that he loved most, that she would take the lives of the most dearest to his life," and offered further testimony of the same witness to the effect that Mrs. Meloy had stated that "her married life had always been unhappy; that her husband had abused her unmercifully, throwing things at her, breaking up the furniture," etc., and the testimony of the witness Bennie V. Bollinger, to the effect that Mrs. Meloy had stated that she and her husband had quarreled over the receipt by her of a silk garment from some male friend in Iowa. Appellant also offered the testimony of the same witness to the effect that Mrs. Meloy had stated that she had a home in Mason City, Iowa, and that, as soon as it was paid for, she was "going back there to civilization, and Jack could go to hell." Appellant offered the testimony of the witness Mrs. Bennie V. Bollinger to the effect that Mrs. Meloy had stated that she and her husband had quarreled over the receipt of a silk garment from some male friend in Mason City, Iowa.

To all of this testimony appellee objected on the ground that no predicate had been laid for the impeachment of the witness Mrs. Meloy. The declaration of the alienated spouse, made prior to the separation, is original evidence, and it is not necessary to lay a predicate for impeachment in order to introduce the same. The fundamental inquiry in a suit of this nature is as to the affection between the alleged alienated spouse and her husband and between her and the party alleged to have alienated her affections. If in fact there was no affection between the woman and her husband, there could be no alienation of her affections; likewise, if there was a state of unhappiness and bitterness between the spouses, this would tend to mitigate the damages suffered. Statements of the alleged alienated spouse tending to show that she was the moving party in the alleged alienation would also be proper evidence for defendant. Nothing could be better evidence of the affection, or lack of affection, between the spouses than admissible statements of the wife herself. Willey v. Howell, 159 Ky. 805, 169 S. W. 519; 30 C. J. 1139; 30 C. J. 1126.

Appellee strongly urges in argument that such testimony ought to be confined to statements of the alleged alienated spouse made before the suspicion of misconduct between the appellant and herself arose. In considering the admissibility of the evidence tendered, we are confined to the point of objections made to its admission. Consolidated Oil Co., v. Schaffner (Tex. Civ. App.) 286 S. W. 258.

The purpose of requiring a specific objection to testimony to be made in the trial court is not alone to enable the court to rule correctly, but is also to enable...