Williams v. Rearick

• Court: Texas Court of Appeals
• Writing for the Court: Pitts
• Citation: Williams v. Rearick, 218 S.W.2d 225 (Tex. App. 1949)
• Decision Date: 21 February 1949
• Docket Number: No. 5951.,5951.
• Parties: WILLIAMS v. REARICK.

218 S.W.2d 225

WILLIAMS v. REARICK.

No. 5951.

Court of Civil Appeals of Texas. Amarillo.

February 21, 1949.

Appeal from District Court, Donley County; Luther Gribble, Judge.

Action by Edna Rearick against Charles Rearick for divorce, wherein defendant impleaded G. W. Williams as a defendant in a cross action for alienation of affections. From an order overruling his plea of privilege, G. W. Williams appeals.

Reversed and remanded with instructions.

Underwood, Wilson, Sutton, Heare & Boyce, of Amarillo, for appellant.

J. R. Porter, of Clarendon, for appellee.

PITTS, Chief Justice.

This is a venue case in which Edna Rearick filed suit on August 24, 1948 in Donley County, Texas, against Charles Rearick for a divorce, alleging the statutory grounds of excessive, cruel treatment. Charles R. Rearick answered with a general denial followed by a pleading denominated by him as a cross action in which he impleaded G. W. Williams of Carson County, Texas, as a defendant in cross action and sues him for damages in the sum of $25,000, alleging that Williams had alienated the affections of his wife, Edna Rearick. Williams filed his plea of privilege to be sued in Carson County where he resided. The same was controverted by Charles R. Rearick and the issue of venue was heard by the trial court without a jury. The plea of privilege was overruled and an appeal was perfected by Williams only. Edna Rearick is not a party to this appeal. G. W. Williams is the only appellant and Charles R. Rearick is appellee. The only issue between appellant and appellee in the main suit is that of damages by reason of the alienation of the affections by appellant of appellee's wife.

Appellee contends that the trial court of Donley County has venue of the suit under the provisions of Section 9, Article 1995, Vernon's Annotated Statutes, alleging that the words spoken, acts done, conduct and influences exerted by appellant performed in Donley County amounted to a trespass in the said county against appellee that resulted in his injury and damage by reason of such words, acts, conduct and influences of appellant having alienated the affections of appellee's wife. Appellee further contends that the trial court has venue by reason of the provisions of Section 29a of the said Article 1995, alleging that appellant is a necessary party to his wife's alleged cause of action against him for a divorce.

We shall first consider the latter contention made by appellee to the effect that appellant is a necessary party to the divorce suit. No property rights and no minor children are involved in the divorce action. Appellee's wife, Edna Rearick, did not make appellant a party to the divorce suit and appellee apparently made him a party to the divorce suit for the sole purpose of seeking damages against him alone. Appellee does not seek damages against his wife, Edna Rearick, or against her and appellant jointly. Whether a divorce is granted or denied Edna Rearick, a proper judgment can be rendered without the presence of appellant, Williams, or any other third person. Appellee's contention that venue is sustained under the provision of Section 29a is not well taken and venue cannot be sustained under appellee's plea by virtue of said section. Our position in this matter is sustained by the cases of Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774; Scott v. Scott, 133 Tex. 1, 123 S.W.2d 306, 126 S.W.2d 626; McCarroll v. Edwards, Tex.Civ.App., 22 S.W.2d 684.

He who seeks to maintain venue under Section 9 of the said Article upon the theory that a trespass has been committed against him in the county in which the suit is filed, must plead in his controverting plea the facts relied upon to constitute the trespass. He must likewise prove the alleged facts and prove that the trespass occurred in the county where the suit is pending. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; City of Mineral Wells v. McDonald, 141 Tex. 113, 170 S.W.2d 466. In compliance with such a rule appellee has, in effect, pleaded in order to constitute a trespass that appellant conceived the purposeful intention to alienate the affections of appellee's wife from appellee and to transfer them to appellant, and that as a part of his plan or scheme appellant committed in Donley County, Texas, acts which were intended and reasonably designed to accomplish his purpose. In compliance with the rule appellee offered his own testimony and that of his 19 year old daughter in support of his allegations.

Appellee testified that he was a minister of the Church of the Assembly of God and a carpenter by trade; that he had been active in the ministry in Carson County before moving with his family to Donley County on June 19, 1947, where he was then minister of a church in Clarendon; that he and his wife had lived together during the time they resided in both Carson and Donley County until she filed suit for a divorce; that on Saturday, August 9, 1947, appellant came to his house in Clarendon, Donley County, with his consent and brought a refrigerator from Conway, another town nearby, which refrigerator appellee had bought for his wife but had no way to transport it home and appellant consented to bring it to appellee's home for him; that he did not know how to install the refrigerator and went to town for a mechanic to install it and left appellant and his wife alone at his home for a period of about thirty minutes and that he left again for a period of about thirty minutes leaving appellant, his wife and the mechanic at home while he was away. He further testified that after the refrigerator was installed, he invited appellant to go to town (Clarendon) with him where he had an engagement to preach on the street and insisted that appellant go with him but appellant declined to go. He was gone about an hour and returned home and found appellant was still at his home alone with appellee's wife. He further testified that he went to the State of Oklahoma about September 9, 1947, and was gone about six days. When he returned he noticed a coolness and indifference toward him by his wife; that she would cry and drum her fingers on the wall by the side of the bed at night, all of which disturbed him. Appellee's daughter, Helen Rearick, born to the marriage of him and Edna Rearick, testified that she was 19 years old and that on the occasion while her father was in Oklahoma several days in September, 1947, appellant had lunch at their house two days in succession; that she did not know when he came or when he left; that he was there both days when she got home from school for lunch and she left him there when she went back to school after lunch. She further testified that she believed appellant was gone when she got home from school each day but she was not positive. She was sure he was gone when she got home from school one day but she was not sure about the other day. She further testified that on both occasions grace was said at the table before lunch and an ordinary conversation was carried on between the parties. She further testified that she soon afterwards told her father about appellant's said two visits in the home while he was in Oklahoma. She testified further that her father had worked for appellant at different times when their family lived in Carson County and that appellant had previously loaned money to her father in connection with a business transaction. Appellee further testified that at a still later date (the exact date not being given) and after he had requested appellant never to communicate with his wife or have anything to do with her, appellant came to the church where appellee was preaching at Clarendon one Sunday night and there shook hands with appellee's wife, which caused appellee embarrassment, humiliation, shame and mental suffering and interfered with his business in church work.

Such is the testimony heard in support of appellee's contention that a trespass occurred in Donley County as alleged. A defendant is entitled to be sued in the county of his residence, in the absence of any statutory exception. Moore v. Tucker, Tex.Civ.App., 14 S.W.2d 70. Exceptions to the privilege of a citizen to be sued in the county of his domicile must be strictly construed and clearly established. Spinnler v. Armstrong, Tex.Civ.App., 63 S.W.2d 1071; Daniel v. Jones, Tex.Civ.App., 103 S.W.2d 437; Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062. A citizen may not lightly be deprived of the right to be sued in the county of his domicile. Amberson v. Anderson, Tex.Civ.App., 43 S.W.2d 120; Hausman Bros. Packing Co. v. Allen,...