Tinnon v. Tinnon

• Decision Date: 14 November 1925
• Docket Number: (No. 9431.)
• Citation: 278 S.W. 288
• Parties: TINNON v. TINNON.
• Court: Texas Court of Appeals

278 S.W. 288

TINNON v. TINNON.

(No. 9431.)

Court of Civil Appeals of Texas. Dallas.

November 14, 1925.

Appeal from District Court, Dallas County; Louis Wilson, Judge.

Suit for divorce by Martha L. Tinnon against C. E. Tinnon. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

A. B. Flanary, Thomas G. Burke, and Leslie Jackson, all of Dallas, for appellant.

C. F. Greenwood and J. M. Terrell, both of Dallas, for appellee.

VAUGHAN, J.

Appellant instituted this suit on the 27th day of August, 1923, for divorce against her husband, appellee, on the ground of excesses, cruel treatment, and outrages of such a nature as to render their further living together insupportable.

Appellant alleges that she and appellee have one child, Katherine Tinnon, a girl, who is now 6 years of age, and that she desires the care, custody, and control of said child be awarded to her, and, further, that she is the owner, as her separate property, of $5,000, par value, of the capital stock of the Nash-McLarty Motor Company, a corporation of Dallas, Tex.; that said stock was acquired by purchase with her own separate estate, and, although so acquired, said stock was issued jointly by said corporation to appellant and appellee, but that appellant did not intend, by allowing such certificate of stock to remain as jointly issued to appellant and appellee, that appellee should have any interest in said stock, and that in fact he has no interest therein. Appellee answered by way of general exception, a number of special exceptions general denial, and plea of condonation, and a special answer as to property rights.

On June 14, 1924, this cause was tried before the court, without a jury, which resulted in judgment denying appellant a divorce and the refusal of the court to adjudicate property rights, and the cost being taxed against appellant. From that judgment this appeal is prosecuted.

Following are the material facts testified to by appellant, the only witiness who testified in reference to the facts concerning the grounds on which the dissolution of the bonds of matrimony between appellant and appellee is sought: That appellant and appellee were married January 7, 1915, at Murphysboro, Tenn., where appellant then resided; that appellee is the husband of appellant, and that she had known him about 10 years before their marriage; that, immediately after their marriage, appellee and appellant came to Dallas, Tex., where they now and have since resided: that, about 2 weeks after their marriage, appellee, without cause, became very angry with appellant, and a neighbor intervened to restore peace; that, within a short time after moving to Dallas, appellee, without cause, began to stay away at night from his home, often as late as 3 o'clock in the morning; that this condition increased until he rarely would spend all of a night at home; that it was not necessary for him to be away at night; that a baby, a little girl, was born to them; that the baby became sick with pneumonia, and, while in this condition, appellee left appellant and the baby alone at night without any occasion to be absent; that, soon after their marriage, appellee commenced drinking whisky and to be rough with appellant; that he kept up this course of conduct more or less during the time she continued to live with him; that appellee was very unkind to her and she was afraid of him, afraid he would hurt the baby; that, while they were living in Highland Park, appellee, one winter morning, without cause, became angry with and threw appellant out of bed on the floor; that, while they were living in Oak Cliff, appellee came to appellant's room on the Christmas Day, about 5 o'clock a. m., and called her to get up and fix his breakfast, that he might go hunting; that, because appellant did not get up immediately, he pulled the cover off her and threw her on the floor, and then pulled the baby out of bed and threw her on the floor. Appellant ran with the baby to the bathroom and locked the door, and remained there until 9 o'clock, as she was afraid appellee would come back and kill the baby, as he appeared to be so angry with appellant; that appellant discussed with appellee his staying out at night; that he told her he was playing poker with a bunch of friends and that they always had a little drink; that appellee drank whisky a great deal at night time; that he was capable and did earn sufficient means to properly care for and support his family, to wit, $150 a month, but that he refused to contribute but a small part of his earnings to the support of his family, requiring appellant to use for that purpose the $70 per month she received from property owned by her; that on one occasion the baby was sick for about 12 days, and, during that time, appellee remained at home only 2 nights; that about the 1st of July, 1923, appellee again became very angry with appellant and hit her on the head with his fist, causing her to have a headache all day, made her cry and very unhappy; that appellee continued to drink whisky and stay out at night up to the time appellant separated from him on August 22, 1923; that, the last night before they separated, appellee came in at 3 o'clock a. m. intoxicated; that appellant was afraid of him, and that she took the baby into the front room and stayed there the rest of the night; that she was afraid of appellee most of the time; that she was reared in a happy home, under refined and cultured training; that, when she separated from appellee, she weighed only 90 pounds, and was running a temperature; that her normal weight had been anywhere from 98 to 108 pounds; that she was on the verge of a nervous breakdown when she left appellee, caused by the long months of nervous strain she had been through with him; that the acts and conduct of appellee during the period of their married life had everything to do with the condition of her health; that she has not lived with appellee since the 22d day of August, 1923; that she now weighs 103½ pounds and has not had any temperature since; and that she now feels very well and strong.

At this stage of the case appellant informed the trial court that the additional testimony she had to offer bearing upon the grounds for divorce was only in corroboration of her testimony on that issue. Whereupon the trial court arrested further introduction of evidence, and, without according to appellee an opportunity to adduce his evidence in rebuttal on that issue, closed the case and rendered the judgment appealed from on the ground that the facts testified to by her, assuming same to be properly corroborated, were not sufficient to authorize the granting of the divorce. By appropriate assignments of error this ruling is before us for review.

We have carefully considered the course of conduct of appellee towards appellant and the treatment accorded her during the 9 years they lived together preceding their separation, and have reached the conclusion that appellant's testimony reveals a long, persistent course of studied, vexatious and ill treatment on the part of appellee towards appellant, involving not only indifference as to her happiness, but an utter disregard for her physical and mental health. The testimony reveals three brutal assaults upon her person and the most outrageous conduct towards their infant child. Not content with throwing appellant from her bed about daylight on a winter morning, he followed this cruel act with another more cruel, the throwing of their infant child out of the bed on the floor. On another ocasion, when she was leaving the home that should have been to her a haven of rest, in order to secure peace of mind and rest of body from the cruel acts of appellee, we find him assaulting her without any other cause apparent from the evidence than his malicious ill feeling towards her. Appellant's health became seriously impaired. She lost in weight until she was reduced from her normal weight of 108 pounds to 90 pounds on account of the conduct of appellee, which preyed both upon the mind and body of appellant, producing not only a condition rendering their further living together insupportable, but life with appellee unbearable.

It has never been the policy of the law to refuse the granting of a divorce on the ground that the complaining party, by surrendering all the joys of life for the purpose of living with the author of her sorrow, could at least exist, and therefore must continue to suffer and endure the hardships and privations heaped upon her in order to preserve the marital relationship.

Certainly it cannot be doubted that such a course of studied, vexatious, and unwarranted conduct, indifference to...