Smith v. Smith, 5990

• Decision Date: 28 November 1949
• Docket Number: No. 5990,5990
• Citation: 225 S.W.2d 1001
• Parties: SMITH et al. v. SMITH.
• Court: Texas Court of Appeals

Page 1001

225 S.W.2d 1001

SMITH et al. v. SMITH.

No. 5990.

Court of Civil Appeals of Texas, Amarillo.

Nov. 28, 1949.

Rehearing Denied Jan. 16, 1950.

Brown & Brown, Texarkana, for appellants.

J. Willard Gragg, Charles H. Storey, Dallas, for appellee.

PITTS, Chief Justice.

This is a suit for damages by reason of alleged alienation of affections filed by appellee, Janis Maxine Smith, originally against appellant, Juanita Kidd, charging that the said appellant had alienated the affections of appellee's former husband, John E. Smith, who was subsequently joined as a party defendant in the trial court by reason of his marriage to appellant, Juanita Kidd, and his last name was thereafter likewise added to Juanita Kidd's name. Appellee pleaded in part that Juanita Kidd was a wealthy young widow who wore expensive clothes and drove an expensive automobile, all of which she used in luring appellee's husband, John E. Smith, away from her. The case was tried to a jury which heard the evidence consisting of admissions of fact made by appellants and the testimony of appellee only. Upon the verdict of the jury judgment was rendered for appellee, from which judgment appellants perfected their appeal to the Court of Civil Appeals of the Fifth Supreme Judicial District and the same was transferred to this court by order of the Supreme Court.

Appellants present numerous points of error charging principally that the evidence did not justify a submission of the case to the jury and that the evidence was insufficient to support the jury's findings. In considering the charges made, the evidence must be considered in the light most favorable to the actions of the trial court and the findings of the jury. The jury found that wrongful acts and conduct of appellant, Juanita Kidd Smith, were the producing cause of the separation of Janis Maxine Smith from her husband, John E. Smith. The jury further found in answer to appellants' requested special issues numbers 1, 2 and 3 that appellee did not by her own actions and conduct cause the alienation of the affections of her former husband, John E. Smith; that John E. Smith did not alienate his affections from his former wife by his own actions and conduct, independent of anything appellant Juanita Kidd Smith did or did not do and that John E. Smith's affections were not alienated from appellee Janis Maxine Smith by any person or persons or by any cause other than the things said and done by appellant Juanita Kidd Smith. The jury further found that appellee had been damaged in the sum of $25,000 as a pecuniary loss sustained only by reason of being deprived of such earnings of her former husband as would have been supplied and contributed to her had they not separated and for the value to her of the loss of the society of her former husband which she would have enjoyed had they not separated. No exemplary damages were awarded because the jury further found that appellant, Juanita Kidd Smith, was not actuated by malice toward appellee in committing the acts and in being guilty of the conduct reflected by the evidence heard.

The evidence reveals that appellee and appellant, John E. Smith, married September 12, 1931, and lived a normal, happy, congenial life together for some fifteen years, during which time he and his wife were faithful to each other. They had bought their own home and were paying it out by installments. One son was born to their marriage whose name is Jack Earnest Smith and he was six years of age at the time of the trial of this case on February 7, 1949. John E. Smith was engaged in a business that took him away from home much of the time but he usually spent the week-end at home. The family attended Sunday School and Church regularly. John E. Smith's average annual net income was about $4,000 and he seemed greatly interested in seeing that his wife and child had the best of attention and all the comforts he could provide. He was about 40 years old in 1946 and had a life expectancy of a little more than 28 years at the time of the trial.

In October of 1946 and Friday night at a late hour Juanita Kidd called John E. Smith by telephone at his home several times in the same night, at two or three o'clock in the morning. Appellee heard her husband's part of the conversation. He had little to say over the phone and made excuses and at first refused to tell appellee who was calling but finally told her it was Juanita Kidd who made the several calls, but he made excuses and did not divulge the nature of her business. Juanita Kidd called John E. Smith at his home again about six o'clock that morning and again at noon and appellee began to draw her own conclusions. Juanita Kidd called John E. Smith again at his home at ten o'clock that (Saturday) night and she called again at midnight the same night after the family had retired. John E. Smith then got up, dressed and told his wife, appellee, he was going to Tyler where Juanita Kidd lived. When appellee asked why he was going to Tyler, he replied, 'I am going down there and bring her back up here and make her tell the truth to you.' He left and returned next morning at six o'clock (Sunday) but Juanita Kidd did not return with him. He told appellee that he went to Tyler and tried to get Juanita Kidd to come and tell appellee the truth but she refused to do so. Soon thereafter John E. Smith left town again for a couple of weeks. After his return home for the week-end he told appellee that everything was all right, told her he loved her and asked her to forget all about the past incidents. He left again the following Monday morning. At noon that day appellee had a long-distance telephone call from Juanita Kidd in Tyler, who asked appellee if she knew who it was and appellee replied she thought she did but Juanita Kidd told her who it was. She asked appellee if 'Smitty', meaning John E. Smith, spent the week-end at home. Appellee replied that he did. Juanita Kidd then asked if he stayed in the home and slept in the room with appellee. She was informed by appellee that he did. Then Juanita Kidd asked appellee a very personal question, to which appellee replied, 'I don't have to answer that to you whatsoever; now since you asked me that personal question, let me ask you something, have you had any intimate relations with my husband?' Juanita Kidd replied, 'I may smoke and I may drink, and I may cuss like a sailor, but that is one thing I don't do.' Appellee then heard her husband, John E. Smith, laugh and heard his voice over the phone. She knew he was in the room with Juanita Kidd during the conversation and she asked to talk to him and she then heard Juanita Kidd say, 'Smitty, she heard you, she wants to talk to you.' But he refused to talk to his wife, appellee. Continuing the conversation, Juanita Kidd then advised appellee that, 'In November of 1945 I was in a party with your husband, and he told me before a group of my friends that he was going to marry me someday, and he is, or else. Now, we are going to New Orleans to see Johnnie Richter. If you want us you can find us there.' Appellee thought they had gone to New Orleans as Juanita Kidd had said, but she checked her husband's route sheet in the local office soon thereafter and found he was supposed to be working in Houston that week. She called her husband's room in the San Jacinto Hotel at Houston and Juanita Kidd answered the phone. Appellee did not get to talk to her husband then but he called her soon thereafter. In that conversation she told him how terrible he was treating her and they talked a little about business matters. Appellee checked further and learned that her husband and Juanita Kidd went to New Orleans from Houston later that week. She had previously suspected that her husband and Juanita Kidd had been travelling together while he was engaged in his work. On one occasion in May of 1946 she had found a brassiere in his laundry and he tried to excuse himself for that discovery. In view of things that had subsequently happened she had finally learned that her husband was not true to her. Next day after she talked with her husband in Houston she received an air mail special delivery letter from him written in his own handwriting and post marked 'Houston, Texas, November 13, 1946, six a. m.'. She received the letter the same day, the contents of which was as follows:

'My Darling

'I am crazy-but you must pay that bill as you promissed-you will have the 15th and all other check to first of year-I can't explain but don't do anything for about three weeks I will be eather dead or can do something-I will see you are protected & I will never take Jack don't black me in front of him take care of him & yourself

'love untill death-John

'I may have 1/2 million dollars by first of year-yes I may be nuts & run you crazy but I will be careful and see you all have the best of everything-I want you to have chevrolet and sell Buick-don't sell lot and help Jack you may make lots money out of lot--

'Please keep stiff upper lip for a while anyway-wait wait-???

(s) John'

Two weeks later John E. Smith returned home, apologized to his wife, asked her to forgive him for his mistakes, said he was truly sorry, told her he was through with Juanita Kidd and would not see her again, and asked her to take him back. Appellee then agreed to live with him for the sake of their son. They...