Wright v. Wright

• Decision Date: 01 January 1851
• Parties: JOHN D. WRIGHT v. MARGARET T. WRIGHT.
• Court: Texas Supreme Court

6 Tex. 3

JOHN D. WRIGHT

v.MARGARET T. WRIGHT.

Supreme Court of Texas.

1851.

The statute defines the grounds of divorce; and whatever diversity of opinion may be entertained as to the authority of a District Court to annul a marriage for causes arising antecedent to its celebration, other than that of incurable impotency, which is expressed in the statute, it will be conceded that for causes subsequently arising the power of the court is restricted to the grounds prescribed in the statute. (Note 1.)

In a suit for divorce a valid, subsisting marriage is a necessary preliminary averment, and its proof at the trial is indispensable. (Note 2.)

In a petition for a divorce vague allegations in relation to continuous cruelties and outrages, without specifications pointing or at least approximating to the times, places, and circumstances of their occurrence, and allegations of general bad character, are impertinent, and furnish no foundation for proof.

The charge of poisoning the minds of her children and changing their natural feelings of love and affection into hatred and contempt, often breaking out into open abuse and violence, are much too vague to form any ground for the admission of evidence or action of the court.

Allegations which cannot be proved by admissible evidence incumber the record, and should be stricken out on special exception.

The allegation that the defendant was guilty of the cold-blooded and brutal murder of the plaintiff's son is sufficient to sustain an action for divorce.

To constitute an excess, cruelty, or outrage within the meaning of the statute, it is not necessary that an indignity or that violence be offered to the person of the wife; if the act be an outrage upon her feelings, it is immaterial whether it be inflicted immediately upon herself or upon third persons, so that it be inconsistent with the matrimonial relation and its duties, obligations, and affections. (Note 3.)

Words and acts which affect the mental feelings enter into the definition of legal cruelty.

The commission of a felony or a capital crime is not of itself, under the statute, a cause of divorce. But the murder of a child of one of the conjugal partners by the other is sufficient, not because of the offense against society, but for the outrage upon the feelings of the parent and consort in matrimony. (Note 4.)

Proof of general reputation, cohabitation of parties, and general reception as man and wife is competent evidence of marriage in a suit for divorce.

Proof that the plaintiff in a suit for divorce had been married previous to her marriage with the defendant, and that that marriage was subsisting at the time, was held to be inadmissible under the allegation in the answer that the plaintiff and defendant were never legally married.

In making up a statement of facts, unimportant and irrelevant matters stated by ignorant witnesses, having no influence on the decision of the cause, should be omitted. And where the parties fail to agree, it is sufficient for the judge to certify “all the material facts proved;” but in case of a difference of opinion between the judge and either of the parties, as to whether certain evidence was material or not, he would doubtless, on motion or suggestion, insert it, although deemed by him to be immaterial.

Allegations contained in the answer and not denied by replication or amendment of the petition are not therefore admitted.

The effect of renewed matrimonial cohabitation, on causes of divorce arising from cruelty or outrages, has not been prescribed by statute, and we may with propriety recur to the doctrines of the canon law as received in the ecclesiastical courts in England.

Reconciliation or condonation is not a bar to complaint as to past outrages, & c., unless there be no subsequent ill treatment or no reasonable apprehension of further violence.

Where husband and wife live together in the same house, there is a presumption of cohabitation, but the presumption may be repelled by circumstances.

It is no objection to a verdict that it is contrary to the instructions of the court where the instructions are themselves erroneous.

A fact in itself criminal may be pleaded and proved when it becomes a necessary fact to the evidence in a civil suit.

Evidence which was admitted below without objection cannot be impugned in this court.

Special verdicts should be upon issues made up under the direction of the court, or the verdict should be drawn up by a lawyer who can understand what issues are formed by the pleadings, &c.

Where in a suit for divorce, in which the marriage was denied, the jury returned the following verdict: “We, the jury, find by the evidence that the plaintiff has well-grounded belief that the defendant is the murderer of Peter N. Hays, her son; and that she lives in continual fear of violence from the defendant, which we believe renders it insupportable to live with him any longer; but find no separate property:” Held, That the verdict was sufficient to sustain a decree of divorce.

Appeal from Victoria. Suit by the appellee for a divorce. The petition alleged that the plaintiff intermarried with the defendant in the year 1828, and that “he is her present legal husband;” that the defendant had for a series of years up to the present time been in the constant habit of using towards her in secret the most harsh, threatening, and abusive language, and had frequently resorted to personal violence, “the times and occasions of which cannot be specifically set forth; but that in September, 1846, being in great danger from a violent attack of illness, the defendant most cruelly and unnaturally abused and neglected her, refusing the least assistance or medical aid, and by his conduct towards her caused the physician whom she called in to see her to leave the house and return no more, whereby the life of the petitioner was greatly endangered;” that the conduct of the defendant had for a long period of time manifested a total want of regard and affection for her; that he had been guilty of many crimes and misdemeanors, from larceny up to murder; “and that his life, marked by acts of studied cruelty and outrage for a series of years against the petitioner, was crowned in the month of September, 1847, as she believes and charges, by the cold-blooded and brutal murder of her only son; that his whole conduct to the present time has been such as to render her future cohabitation with him insupportable; that she cannot remain with him longer without incurring the same deep disgrace with himself; and from her knowledge of his sly and dangerous character, and the deep malice which he bears in the depth of his heart against her, she fears that if she were to continue to live with him she would not only suffer cruel, personal violence when alone with him, but that her life would be in continual danger; that soon after she became satisfied that the defendant had assassinated her son she left their common home and instituted proceedings against him for a divorce; that during the pendency of the said proceedings the defendant, with the fraudulent design of gaining an advantage over her in the said suit, repeatedly visited her and pretended to desire a compromise of the same, and finally succeeded in persuading her by a false and hypocritical promise,” the terms of which are specially set forth, “induced, as she was, also by her desire to extend to her daughters the affectionate care and supervision of a mother, to return to his house, but she utterly refused to cohabit with him. She remained with him but a short period of time, viz, ten days, about the end of which, the time allowed the petitioner to file an amendment in the aforesaid proceeding for divorce having elapsed, the defendant, having fraudulently obtained the advantage of delay, threw off the mask and refused to go to the Rio Grande, as he had solemnly promised, or to give the petitioner the control of her daughters and of the household, and returned to his accustomed course of treatment to the petitioner, viz, that of unnatural and fierce abuse, threats, and cruelties, so that she was compelled to escape in the night time.”

The appellant, who was defendant in the court below, demurred to the petition; denied the fact of intermarriage with the petitioner; admitted that by his solicitation she returned to his house, and remained with him about twenty days; alleged that she did not escape in the night time, but that she departed voluntarily, without his knowledge, at about four o'clock in the evening; that he again, bona fide and zealously, endeavored to persuade her to return to his house; but that she refused to do so; denied that during her return and stay at his house or since he had ever used any personal violence or abusive language towards the petitioner; but alleged that he repeatedly urged her to choose referees to compromise and settle the matters of difficulty between them; and that she wholly failed so to do. The defendant further averred that the petitioner, on her return to his house and cohabitation with him for the space of twenty days, had, by condonation, given up every ground of divorce which had existed and accrued before the date of her return; and concluded by denying all the other several charges, statements, averments, and allegations in the petition contained.

The verdict was expressed in the following terms:

“We the jury find by the evidence that the plaintiff has well-grounded belief that the defendant is the murderer of Peter N. Hays, her son; and that she lives in continual fear of violence from the defendant, which we believe renders it insupportable to live with him any longer, but find no separate property.”

Upon this verdict a divorce from the bonds of matrimony, and a division of the property were decreed.

The defendant's attorney asked the court to charge the jury--

1st. Because it is alleged in the defendant's answer (and not denied in the pleadings or disproved by any...