Turner v. Turner

Decision Date25 November 1964
Docket NumberNo. A-9803,A-9803
Citation385 S.W.2d 230
PartiesMozelle Corley TURNER et vir, Petitioners, v. Genevieve J. TURNER et al., Respondents.
CourtTexas Supreme Court

Fred W. Moore and Lew W. Harpold, Fred C. Brigman, Jr. and Brigman, Martin & Smith, Houston, for respondent Genevieve J. Turner.

Fred Parks and Ruby Sondock, Houston, for responent J. F. Corley.

GRIFFIN, Justice.

This is an alienation of affections suit brought in a district court of Harris County, Texas, by respondent Genevieve J. Turner, against Mozelle Corley and husband, Pat Corley, as defendants. The original petition was filed June 6, 1960.

The cause was tried to a jury in May, 1962, and on the answer of the jury to special issues, the trial court entered judgment in favor of Genevieve Turner against Mozelle Corley Turner for $150,000.00 actual damages, plus $29,000.00 exemplary damages and in favor of respondent Pat Corley against his former wife, Mozelle Corley Turner, for $30,000.00 as attorney's fees. Petitioner appealed to the Court of Civil Appeals, which affirmed the trial court's judgment. 369 S.W.2d 675.

Mozelle and Pat Corley had been married some eighteen years when they permanently separated December 30, 1959. Genevieve J. Turner and Harry A. Turner were married in 1938 and were divorced August 2, 1960. The Corleys were divorced March 27, 1961. Mozelle Corley and Harry Turner married April 7, 1961.

Until the filing of the alienation of affections suit in June, 1960, or a few months prior thereto, the Turners and Corleys were very close friends. They took trips together and spent a great deal of time together.

The Court of Civil Appeals has set out in its opinion a full statement of the facts of this unfortunate litigation between former friends and we will not restate the facts.

Mozelle Corley Turner and her present husband, Harry Turner, as petitioners herein, complain of the action of the trial court-affirmed by the Court of Civil Appeals-in awarding to Pat Corley a judgment for $30,000.00 as reasonable attorney's fees, because it is contended this suit is not one in which attorney's fees may be awarded to Pat Corley.

Pat Corley answers that in view of the jury findings that he did not induce the plaintiff to file this suit, and that he did not aid the plaintiff in the prosecution of the suit, he is an innocent party to the suit and is entitled to be indemnified by Mozelle, the active defendant. Therefore, he is entitled to recover his attorney's fees.

We sustain the assignment of the petitioner, Mozelle Corley Turner, that she cannot be charged with attorney's fees in this suit.

The alienation of the affections of Harry A. Turner, caused by the conduct of Mozelle Corley Turner, is a tort against plaintiff Genevieve J. Turner. Pat Corley is not individually liable for the torts of his wife not aided and abetted by him. The community estate of Mozelle and Pat Corley would be liable. Art. 4613, Vernon's Ann.Civ.St.

Pat Corley had no right of action against Mozelle Corley Turner for her wrongful conduct against him, resulting in the alienation of the affections of Harry A. Turner from the plaintiff.

That the husband cannot sue his wife for damages resulting from the torts of his wife committed against him was settled by the case of Nickerson and Matson v. Nickerson, 65 Tex. 281, 1886. It is true that this was a case where the wife was seeking recovery against the husband for a tort committed by the husband and a third party against the wife. Nickerson and his wife had been divorced after the commission of the tort, but prior to the trial of the wife's suit. The court said:

'The tort inflicted upon the wife by the husband and another, gave no right of action to the wife against the husband.'


'Whatever cause of action the wife had, accrued when the acts of which she complains were committed; and the fact of divorce subsequently granted, can not make that a cause of action which was not so at the time the facts transpired.'

The Nickerson case had been followed by many cases, and an examination of Shepard's Texas Citations discloses that the rules of law laid down as quoted above have never been questioned. See also Gowin v. Gowin, Tex.Civ.App., 264 S.W. 529, 1924, affirmed Tex.Civ.App., 292 S.W. 211, 1927; Latiolais v. Latiolais, 361 S.W.2d 252, 253, Tex.Civ.App.1962, writ ref., n. r. e.; 30 Tex.Jur.2d, p. 234, § 145.

The general rule of law in this state is that, unless provided for by statute or by contract between the parties, attorney's fees incurred by a party to litigation are not recoverable against his adversary either in an action in tort or by suit upon a contract. Van Zandt v. Ft. Worth Press, 359 S.W.2d 893, 896(5), Tex.Sup.1962; Perry v. Leuttich, 132 Tex. 159, 121 S.W.2d 332, 333 (2-4), 1938; Wm. Cameron & Co. v. American Surety Co. of New York, 55 S.W.2d 1032, 1035(3), Tex.Com.App., 1932; Sherrick v. Wyland, 14 Tex.Civ.App. 299, 37 S.W. 345, 1896.

All parties to this litigation agree that there is no legislative enactment permitting recovery of attorney's fees in cases of this character.

Mozelle Corley Turner claims that the property settlement agreement between her and Pat Corley in the divorce suit prevents any recovery by Pat against her of his attorney's fees. Pat answers that this is not a correct construction of such settlement agreement and a re sume of the terms of the agreement, relied on herein, is that (1) each party to the agreement shall be liable for his respective attorney's fees, (2) that any obligation incurred by either party after February 1, 1961, would be the separate obligation of the party incurring the same. Pat claims that if he is forced to have his share of the community property applied to the payment of this judgment by virtue of the separation agreement, he should be indemnified by Mozelle. He claims that having the right to indemnity from Mozelle, this right should include the right to his attorney's fees for defending Genevieve Turner's suit against him for damages by virtue of the alienation of Harry Turner's affections. The settlement agreement between Mozelle and Pat Corley specifically provided, 'Any liability for the alienation of affections suit now pending against First Party and Second Party is expressly not assumed by either of the parties hereto, and the satisfaction of any judgment which might be incurred by reason thereof shall be left open and unaffected by this property settlement agreement.'

By virtue of this provision, we hold the separation agreement has no application to our problem herein, and does not afford any basis for recovery or denial of attorney's fees.

Pat Corley cites some cases where attorney's fees have been allowed in suits for indemnity. These cases are not in point here. None of them involve suits between husband and wife, or a former husband and wife for wrongs arising during the existence of the marriage relationship. Also, these cited cases are suits upon indemnity bonds or suits by one joint tortfeasor to collect indemnity because of the payment of a joint judgment against the parties to these suits. Pat Corley and Mozelle Corley were not joint tort-feasors in this cause, and it was so stipulated by the parties to this suit.

Pat Corley could not recover against Mozelle Corley for her tort, therefore he cannot claim indemnity from Mozelle for the expenses incurred by him in defending Genevieve J. Turner's suit against both parties.

Pat Corley quotes from Sec. 914, Vol. 4, Restatement of the Law: Torts, as follows:

'A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees and other expenditures thereby suffered or incurred.'

The comment under this Sec. 914 refers to Restatement of Restitution, Sections 86-102, for the rule applicable to cases such as the one we have here. Under Sec. 96 of Restitution it is stated that, 'The restatement of this subject does not deal with rights dependent upon special relationships, such as husband and wife and parent and child * * *.'

There is a very exhaustive annotation in 45 A.L.R.2d 1184 et seq. as to recovery of attorney's fees which a plaintiff is obligated to pay in a litigation of his claim.

It is there stated that the general rule is that such attorney's fees are not recoverable in the absence of some statutory or contract provision permitting their recovery, but that there are exceptions and modifications to this general rule. One exception is that where a plaintiff has been involved in litigation with a third party as a result of the tortious act of another, plaintiff may recover in a separate suit for his reasonable and necessary expenses of the prior litigation. In order that such recovery may be had there are certain requisites prescribed, the first of which is that the present plaintiff (Pat Corley in his cross-action) must have incurred attorney's fees in the prosecution or the defense of a prior action. Another, the litigation must have involved a third party and not against the defendant (Mozelle Corley) in the present action. These requisites are not met by the cross-action of Pat Corley against Mozelle for his attorney's fees.

This annotation discusses Sec. 914 of Restatement of the Law: Torts, relied upon by Pat Corley and it is shown such section does not cover our case.

That part of the judgment of both courts below which permits recovery by Pat Corley from Mozelle Corley Turner of any attorney's fees is reversed and Pat Corley shall recover no attorney's fees herein.

We now come to the contention of Mozelle Corley Turner that the trial court committed error in not sustaining her motion to enjoin Pat Corley's attorney, Fred Parks, Esquire, from appearing as counsel in this case because he was disqualified by virtue of having in the...

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