source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    FLIPPEN-PRATHER REALTY CO. v. MATHER.
    (No. 7995.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 2, 1918.
    Rehearing Denied Dec. 14, 1918.)
    1. Death <S=14(1) — Negligence <®=7 — Grounds or Action — Breach of Duty.
    In actions to recover damages for injuries to or the death of children, as in cases to recover damages for the death or injuries to adults, suit cannot be maintained unless defendant has been guilty of a breach of duty.
    2. Negligence <©=33(3) — Dangerous Condition oe Premises — Duty of Owner.
    Owner, who neither expressly nor impliedly invites public to come upon his premises, is under no obligation to keep them free from pitfalls or in a condition of safety for persons, whether adults or infants, who in pursuit of pleasure or convenience go upon or pass over such premises.
    3. Negligence <©=32 (4) — Places Attractive to Children — Liability op Owner.
    If owner of premises invites or allures a child into a place of danger and negligently injures such child while there, he may be held liable, in the absence of contributory negligence for such injury.
    4. Negligence €=>39 — Places Attractive to Children — Evidence.
    To warrant inference of implied invitation, the object or thing which induced injured person to go upon premises must, on account of its nature and surroundings, be especially and unusually attractive.
    5. Negligence <©=39 — Places Attractive to Children — Evidence.
    If owner maintains upon his premises something which, on account of its nature and surroundings, is especially and unusually calculated to attract and does attract children, invitation of the owner may be inferred.
    6. Negligence <S=111(1) — Petition—Sufficiency.
    In suit for death of a son about seven years old due to his falling into an open, unguarded well on defendant’s- vacant property, allegations of petition held to state a cause of action.
    7. Negligence <®=134(1) — Places Attractive to Children — Evidence.
    Jury finding that unguarded, open well on defendant’s vacant property into which plaintiff’s intestate, a son about seven years old, fell, was attractive to children by reason of its nature and surroundings, held warranted.
    8. Negligence <©=135 — Contributory Negligence — Child—Evidence.
    In suit for death óf a son about seven years old due to his falling into an open, unguarded well on defendant’s vacant property, held, on the evidence, that son was not, considering his age and discretion, guilty of contributory negligence.
    9. Negligence <©=134(11) — Cause of Injury —Evidence.
    In suit for death of a son about seven years old due to his falling into an open, unguarded well on defendant’s vacant property, held, on the evidence, that negligence of defendant caused death of son.
    10. Negligence <®=^23(1) — Tubntable Doctrine-Applicability.
    The rule that owner cannot escape liability for resulting injury, where he places on his premises and leaves unguarded dangerous machinery unusually attractive to children, should not be restricted to injuries resulting from turntables.
    11. Death <t=>99(3) — Damages — Excessive Damages.
    A verdict of $10,000 for the death of a healthy, robust, and bright son about seven years old, is not so large as to indicate that jury was actuated by improper motives, and will not be disturbed on appeal.
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Suit by V. K. Mather, for Mrnself and wife, against the Elippen-Prather Realty Company. Judgment for plaintiff, motion for new trial overruled, and defendant appeals.
    Affirmed.
    J. J. Eckford, of Dallas, for appellant.
    Cockrell, Gray, McBride & O’Donnell, of Dallas, for appellee.
   TALBOT, J.

V. K. Mather, for himself and wife, Nannie W. Mather, brought this suit to recover of appellant damages on account of the death of thefir son, Vernon Mather, who, at the date of his death, was between seven and eight years of age, which occurred April 24,1916, by reason of the said Vernon Mather falling into a well situated on vacant property of appellant, known as block 65 of the Fourth installment of Highland Park, an addition to the city of Dallas, and drowning.

Appellee alleges: That said block 65 was subdivided into lots which were being offered by appellant for sale to the public for residence purposes; that said block, at the time Vernon Mather lost his life and for seven years prior thereto, was surrounded by opened, developed, and paved streets, being Beverly drive on the north, Byron avenue on the east, Princeton avenue on the south, and St. John’s drive on the west. That on April 24, 1916, and for some time prior thereto, appel-lee resided with his family in block 84 of said Fourth installment, his residence being situated two blocks almost directly south from said block 65. That immediately north of block 65, and but one block therefrom, was situated the public schoolhouse, which was at the time of the accident in question and for several years prior thereto in use and patronized by the citizens of Highland Park, a suburb of the city of Dallas, having a very considerable population. That appellee’s little boy, Vernon Mather, was among the chil- , dren attending said school. That on the 24th day of April, 1916, and for years prior thereto, there was situated on block 65, and owned by appellant, an old, open, unused, and abandoned well, the presence of which was known to appellant. That there was no fence surrounding said block, and no safeguard or protection whatsoever around said well to prevent the egress thereto of small children. That the well was on the 24th day of April, 1916, more than 14 feet deep. That immediately surrounding the mouth of the well was a circular depression slightly lower than the surrounding surface of the ground, and on such depression small children attending school were accustomed to, and had been accustomed for a great while to, play. That said well was especially and unusually attractive to children, and actually did attract children, and particularly the small children attending the school a short distance away, who used the depression around the well as a “speedway,” as they called it, chasing one another around it. That children were attracted by the water therein. That not only so, but that said block 65 on which the abandoned well was situated was especially and unusually attractive to children, as a great many flowers were growing and had been growing thereon, and small children, and particularly those attending school, were accustomed daily to frequent said block and gather flowers. That said block, being directly within the path of the children attending the school just north of it, was daily passed over and used by them in going to and returning from school, and in so passing over said block they were accustomed, and had been for a long time, to pass alongside said well. That appellant, knowing these facts, used no diligence or care to guard against the calamity to small children of falling into said well. That the location, surroundings, and condition of the premises and the condition in which said well was maintained, being especially and unusually attractive to children, constituted an invitation from appellant to children to enter upon said premises and to play around and about said well. That appellee’s child, Vernon Mather, was among those accustomed to play in and around the well and to gather flowers on said block 65. That on April 24, 1916, said Vernon Mather in company with other small children attending said school, on account of the unusual attraction of said premises and particularly of said well, and being attracted thereby, went upon said vacant block 65 for the purpose of playing around the well, aud in so. playing, and in some manner unknown to appellee, Vernon fell into the well and was drowned. That the death of the said child was the result of the inexcusable and wanton negligence of appellant. That neither ap-pellee nor Ms wife had any knowledge of the ■existence of the well until after the death of their child. Appellee «further alleged that Vernon Mather was a robust, he.althy, well-developed boy, strong physically, bright and quick mentally and a precocious and promising child, and that appellee and his wife had each been damaged by his death in the sum of $10,000.

Appellant answered by general and special ■demurrers, general denial, and plea of contributory negligence on the part of Vernon Mather. It also specially denied that children played on said block, or that it was attractive, but alleged that it was rough, vacant property covered with weeds and outside any city, and paved sidewalks had been provided for patrons of the school, and there was no necessity to use this block for any purpose; that the well in question was on the property when acquired by appellant, and this and other wells on its property were filled up by appellant; and that the fact that tMs well did not remain filled up to its top at the time of said accident was unknown to appellant.

The case was submitted to a jury upon special issues, and, in response to the issues submitted, the jury found that the well in question was especially and unusually attractive to cMldren such as Vernon Mather, and dangerous to them; that Vernon Mather was attracted hy it, and as a result of such attraction was caused to lose his life; that appellant was guilty of negligence in permitting the well to be upon the premises in a condition especially and unusually attractive and dangerous to children; that the sum of $10,000 paid in cash now would reasonably compensate appellee and his wife for having been deprived of the earnings and services of their child, Vernon Mather, during his minority, and of the pecuniary benefits that they might reasonably have expected would be rendered to them by said Vernon after he should have reached his majority, etc. In response to questions propounded at the request of the appellant, the jury further found that Vernon Mather knew of the existence of the well prior to the time he visited it and was drowned; that the “natural surroundings” caused Vernon Mather to visit the well at the time he was drowned; that appellant or its officers knew at the time of the accident, or by the exercise of ordinary care would have known, that children played around or about the well prior to the accident to Vernon Mather; that Vernon Mather exercised ordinary care and prudence in playing at and about the well in the way he did at the time he was drowned; and that appellant did not exercise ordinary care to prevent said well from being dangerous.

Appellant’s motion for judgment, notwithstanding the verdict of the jury, was overruled, and judgment rendered in favor of the appellee for $10,000. Appellant filed a motion for a new trial, which being overruled, it appealed.

The contention of the appellant made under its 50 assignments of error may be summed up as follows: First, the appellee having failed to allege that the abandoned well in which appellee’s son was drowned was so near to a public highway that a person using the highway would be injured thereby, or that the child was there on business with appellant or at its invitation, but it affirmatively appearing from the allegations of appellee’s petition that the child was a trespasser or a mere licensee, fails to show a cause of action, and the court erred in overruling appellant’s exceptions! to the petition; second, the undisputed evidence showing that Vernon Mather, the son of appellee, at the time he was drowned In the well was upon appellant’s property without invitation of appellant, and was not using or attempting to use the public liigh-way, but was knowingly upon the private property of appellant, the well in which he was drowned not being substantially near the public highway, and said property being vacant property of the general character of like property in that vicinity, and appellant and its agents not knowing the actual condition of the well at the time of the accident, nor that persons used these premises for playing or for any other purpose, and the injury received by appellee’s son not having been wantonly, willfully, or knqfwingly inflicted upon him, the court erred in not setting aside the verdict and judgment rendered against appellant; third, under the undisputed evidence, the court should have given appellant’s special charge directing the jury to return a verdict for appellant; fourth, the court erred in overruling, appellant’s objections to the submission of the issues as to whether or not the well in question was especially and unusually attractive to 'small children such as Vernon Mather and was Vernon Mather attracted by it, because there was no evidence authorizing the submission of such issues; fifth, the court erred in submitting the issue, did appellant or its officers know at the time of the accident, or by the exercise of ordinary care would have known, that children played around or about the well in question prior to the time Vernon Mather was drowned, because the owner of vacant property upon which is a well not near a public highway does not owe to a person upon such property without his knowledge or consent the duty of exercising ordinary care to ascertain whether or not children played around or about such well; sixth, the jury in answer to the first special issue submitted, having found that the well was especially attractive, and in answer to special issue No. 2 requested by appellant having iound that Vernon Mather was induced to go to the well because of the. natural surroundings, which wfere the flowers, there is a direct conflict in the findings of the jury upon said issues; seventh, the finding of the jury that the appellant was guilty of negligence in permitting the well to be upon the premises in a condition especially and unusually attractive and dangeropis to children was contrary to and unsupported by the evidence; eighth, the verdict of the jury awarding ap-pellees $10,000 damages is excessive, because the only evidence of the earning capacity of Vernon Mather was that he was seven years and two months old at the time he was drowned, and a perfectly healthy, robust, and mentally bright child; ninth, the undisputed evidence showing that Vernon Mather did not know of the existence of the well prior to the time he visited it and was drowned, the finding of the jury that he did know of its existence before that time was contrary to all the evidence and without evidence to support it; tenth, the finding of the jury that Vernon Mather was induced to visit the well because of the natural surroundings is contrary to all the evidence; eleventh, the finding of the jury that Vernon Mather exercised ordinary care in playing about the well in the way he did, that is, such care as would reasonably be expected of a child of his age and discretion, was contrary to and not supported by the evidence.

The leading questions raised and presented in the foregoing contentions of the appellant, or similar questions, have often been discussed and determined by appellate courts of the country, and the decisions are by no means uniform. It is well established, however, at least by the adjudicated cases in this state, that in actions to recover damages for injuries to- or the death of children, as in cases to recover damages for the death oi injuries to adults, the suit cannot be maintained unless the defendant has been guilty of a breach of duty. Mr. Elliott, in his work on Railroads, says:

He believes “the true rule to be that, although the age of the child may be important in determining the question of contributory negligence or the duty, of the company after discovering him, the company is, in general, no more bound to keep its premises safe for children who are trespassers, or bare licensees not invited or enticed by it, than it is to keep them safe for adults.”

The general rule is also well established that the owner, who neither expressly nor impliedly invited the public to come upon his premises, is under no legal obligation to keep them free from pitfalls or in a condition of safety for those persons, whether adults or infants, who in pursuit of his own pleasure or convenience go upon or pass over such premises, even though it be with acquiescence of the owner. As said by Mr. Elliott:

‘‘The licensee takes his license subject to its concomitant perils, and the licensor, as a general rule, owes him no duty except to refrain from willfully or wantonly injuring him, or to exercise ordinary and#reasona-ble care after discovering him to be in peril.” Elliott on Railroads (2d Ed.) § 1250.

There is quite a difference, however, between a license and an invitation. If the owner of premises invites or allures a child into a place of danger and negligently injures such child while there, he may be held liable, in the absence of contributory- negligence, for such injury. Instances of this character are found most frequently in cases where children were allowed upon the premises of railway companies by attractive machinery, such as turntables. Railway Co. v. Moore, 172 S. W. 568. The doctrine announced by our Supreme Court is that, if a person enters upon the private property of another by invitation of the owner, a lawful relation is thereby established, 'and the law imposes upon the owner in such case the duty of care for his safety; the degree of care being, ordinarily, reasonable care. Such invitation may be express or implied; but, in cases where it is sought to establish the fact of invitation from circumstances, it is often very difficult to determine the character of circumstances from which the fact of invitation can be inferred. Our Supreme Court does not subscribe to the broad proposition that, if the owner places or permits anything upon his property which is attractive to others and one is thereby induced to go thereon, an Invitation to do so may be inferred as a fact by the court or jury. So it is held that, where the owner makes such use of his property as persons ordinarily do throughout the country, there is not, in legal contemplation, any evidence from which a court and jury may find that he has invited the party injured thereon, though it be conceded that his property or something thereon was calculated to attract him., Stamford Oil Mill Co. v. Barnes, 103 Tex. 409, 128 S. W. 375, 31 L. R. A. (N. S.) 1218, Ann. Cas. 1913A, 111.

To warrant the inference of implied invitation, the object or thing which induced the person to go upon the premises must, on account of its nature and surroundings, be especially and unusually attractive. If therefore “the owner maintains upon his premises something which on account of its nature and surrounding is especially and unusually calculated to attract and does attract another (especially a child of tender years), the court or jury may infer that he so intended and hence invited him.” So it has been said that where one exhibits on his own land near where children are likely to be pictures or unusually attractive machinery, etc., he can expect no other result than that it will appeal to the known instincts of a child of immature judgment and cause him to venture thereon. “Tlie owner of property, after he constructs or keeps thereon machinery, or other things with, which there is danger of contact resulting in injury to those coming thereon, may make himself responsible for their coming and consequent injury by some course of conduct calculated naturally to bring it about, and hence in such case there is a duty resting upon him to abstain from such course of conduct or else to take proper precaution to protect from injury those likely to be drawn into danger by it, and the failure to observe that duty, resulting in injury to one entitled to take advantage of it, is actionable. Therefore it is that the invitation, license, or allurement of others to come upon one’s premises may give rise to a responsibility on his part, which without such invitation, license, or allurement, would not exist, for injuries sustained by them from dangerous things thereon against which he has not exercised ordinary care to guard them.” Stamford Oil Mill Co. v. Barnes, supra. In the case just cited, it is further said that that which an owner keeps upon his premises may, in itself, have such powerful attraction for children or others incapable of exercising proper care for their own safety as to give rise to the duty to which we have referred; but this is not true of those things which the owners of property use in their ordinary business in the way in which men of ordinary prudence are accustomed to use them. Among the other eases illustrative of this fule are the following: Railway Co. v. Morgan, supra; Simonton v. Citizens’ Electric Light & Power Co., 28 Tex. Civ. App. 374, 67 S. W. 530; Railway Co. v. Harlan, 39 Tex. Civ. App. 427, 87 S. W. 732; Williamson v. Railway Co., 40 Tex. Civ. App. 18, 88 S. W. 280.

The appellant was not making use of the well into which Vernon Mather fell and was drowned, in the usual and ordinary way that wells are used throughout'the country. It was an entirely unused, unguarded, and abandoned well situated upon vacant and unused and unfenced land of appellant. In the view we take of the case, the allegations pf the petition showed a cause of action, and appellant’s demurrers were correctly overruled ; and the evidence was sufficient to authorize and sustain the finding of the jury that by reason of its nature and surroundings it was especially and unusually attractive to children; that it was about 100 or 130 feet from one of the streets; that at the time Vernon fell into .it, and during the spring and summer months prior and subsequent thereto, a variety of wild flowers grew in profusion upon the land upon which it was situated ; that the well itself was especially attractive to children because of the frogs found sitting around on rocks or other substances near the top of the well at which they were accustomed to throwing, and because of the water in the well into which they would throw rocks and other missiles. North of the well, and only about one block therefrom, was situated the public scboolhouse, in which at the time of the accident, and for several years prior thereto, a school was conducted and attended by a number of children, among whom for some time prior to the accident was Vernon Mather. For years prior to the accident resulting in Vernon’s death, the well- into which he fell was, with appellant’s knowledge, upon its vacant land unguarded and unused. Recognizing the dangerous condition of the well, appellant had at one time attempted to fill it up, but negligently failed to do so. Many, if not all, of the children attending the public school near the well were at the time Vernon Mather was drowned, and for perhaps a year or more, accustomed to play about the well and on the vacant block of ground upon which it was situated and to gather wild flowers growing thereon. That children in considerable numbers were accustomed to play about the well and on the vacant block of ground upon which it was situated is undisputed in the evidence, and so frequently did they pass ovér this block of ground in going to and returning from school that a well-beaten path appeared on the ground and close to the well. The water in the well was several feet deep and came within about two feet of the top. Surrounding the well was a circular depression slightly lower than the surrounding surface of the ground, and on this depression children were accustomed to play. They would not only throw missiles into the well, but would chase each other around the well. It does not appear by positive testimony that Vernon Mather knew of the existence of the well or played about it and upon the block of ground on which the well is located before the time he fell into the well and was drowned; but the facts and circumstances in evidence, we think, warranted the findings of the jury that he did, and that the well and its surroundings caused him to visit the well at the time he was drowned, notwithstanding it was suggested to him by little Willie Crawford, a playmate, that they go. There is positive and uneontradicted evidence that before Vernon fell into the well there was hardly an afternoon or night that he did not carry home to his mother a handful of wild flowers, and, as wild flowers were growing on the block of ground upon which the well was situated and the school children were in the habit of passing over and playing on said block, the reasonable presumption or inference is that he gathered these flowers on that block.

The evidence was further sufficient to sustain the findings of the jury that appellant or its officers knew at the time pf the accident, or by the exercise of ordinary care would have known, that -children played around or about the well at that time and prior thereto, and failed to exercise ordinary care to prevent the well from being dangerous; and that for one of his age and discretion Vernon Mather was not guilty of contributory negligence. The evidence relied on to sustain the aforesaid findings of the jury may not he as strong and satisfactory as could be desired, but clearly it is of such probative force that this court would not be warranted in declaring, as a matter of law, that there was no evidence to authorize and sustain said findings. It follows therefore that appellant suffered an unguarded, unused, and abandoned well, in no manner useful to it, but a dangerous pitfall for children, to be and remain on its premises for several years. The condition and surroundings of the well were such as to be especially and unusually attractive to small children, and did actually attract Vernon Mather and cause his death. The expense of filling up the well or guarding against its danger to children would have been trifling, and without injury to the property or its free use by appellant. The appellant knew of its condition, and that children were accustomed to playing around and dangerously near it, or the facts were such as to charge it with notice thereof ; and under all the facts and circumstances in evidence we think it must be held that the negligence shown on the part of appellant caused the death of Vernon Mather, and that appellant should respond in damages therefor.

In Lumber Co. v. Thompson, 215 Fed. 8, 131 C. C. A. 316, L. R. A. 1915A, 731, the court held that—

“A property owner who leaves an open well unprotected on his property, to which, to his knowledge, actual or constructive, children resort to play, is liable for the death of a child who falls into it and is drowned.”

Likewise, in Tucker v. Draper, 62 Neb. 66, 86 N. W. 917, 54 L. R. A. 321, the Supreme Court of Nebraska held that if the owner knew that there was an open well upon his premises and knew that children of such tender years as have no notion of the danger were continually playing around it, and he could obviate the danger with very little trouble to himself and without injury to the premises or interference with his own free use thereof, he owed an active duty to those children, and, if he neglected that duty and they fell into the well and were killed, it would be through his negligence.

In the “turntable cases.” decided in this state, it is held:

“The owner cannot escape liability for a resulting injury if he places on his premises and leaves unguarded dangerous machinery unusually attractive to children, even though the injured child was there without express permission.”

And we heartily agree with the view expressed by the Court of Civil Appeals for the Sixth District in the case of Little v. James McCord Co., 151 S. W. 835, that—

“There is no sound reason for restricting that rule to injuries resulting from unguarded turntables.”

The case is not ruled by Dobbins v. Railway Co., 91 Tex. 61, 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856, or by any case cited b|y appellant which is in conflict with the views we have herein expressed.

Is the verdict excessive? It is undeniably large, but is not so large as to authorize this court to reverse the judgment because thereof, or require a remittitur. It has been held that absolute accuracy with respect to the damages in such a case cannot be attained; that it is extremely difficult, in fact impossible, in this class of cases, to procure expert testimony as to the value of a child’s services, and therefore the amount must be left to the sound discretion and common sense of the jury. Railway Co. v. Sciacca, 80 Tex. 355, 16 S. W. 31; Railway Co. v. Measles, 81 Tex. 477, 17 S. W. 125; Railway Co. v. Bolen, 129 S. W. 860. In Railway Co. v. Measles, supra, it was said:

“As the case is one involving injury to a child of undeveloped faculties, it would seem to be only necessary to proye the willingness and capacity of the child, his age, and his relationship to the next of kin, and the extent to which he has been injured, leaving to the jury as ‘men of knowledge and experience in relation to matters of common observation,’ the task of assessing the pecuniary damages upon the facts proved.”

It was shown in the case before, us that Vernon Mather had never been sick; that he was a healthy, robust child, and bright mentally. The verdict is not so large as to shock the conscience or indicate that the jury in arriving at the amount awarded was actuated by improper motives. To disturb their finding as to the amount necessary to fairly compensate appellees for their loss would simply be to substitute our judgment for theirs, and, as it was their peculiar province to assess the amount of appellees’ damages, we do not feel warranted in doing so.

Believing there is no reversible error disclosed by the record, the judgment of the district court is affirmed.
      <S=Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      cgz^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    COSS et al. v. COSS.
    (No. 6178.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1918.
    On Motion for Rehearing, Dec 18, 1918.)
    1. Husband and Wife <@=>2(fe(4) — Suit fob Separate Property — .Residence.
    In suit to obtain divorce and recover separate property and community interest, objection that allegations failed to show that plaintiff wife had resided in county, and had been actual bona fide inhabitant of the state for 12 months, might be good as far as suit for divorce is concerned, but would have no pertinency so far as suit for her property is concerned.
    2. Courts <@=>12(2) — Rights of Nonresidents to Maintain Suit.
    The comity existing between states and nations sanctioned the rule that an inhabitant of another state or another nation has free access to courts for the redress of wrongs or the prosecution of rights.
    3. Divorce <@=>206 — Verification of Petition-Sufficiency.
    In suit by wife to obtain divorce and recover her separate property and community interest, verification to petition for injunction restraining defendants from disposing of property, held to sufficiently indicate the matter sworn to as true and those sworn to on belief.
    4. Husband and Wife <@=>272(1) — Suit for Interest in Community — Pleading.
    That defendant husband without just cause abandoned plaintiff wife and infant child, taking with him not only the money belonging to the community estate but property belonging to the wife, authorized suit not only for separate property, but for interest in community estate.
    5. Husband and Wife <@=>272(1) — Suit for Wife’s Interest in Community.
    When a husband is proven untrue to the trust confided to him by the laws of the state in the management of the community property, and is ruthlessly defrauding his lawful wife of her means of support and lavishing her property on the companion of his lust, the outraged wife should have the courts thrown open for her protection.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Suit by Guadalupe Reyes Coss against Francisco Coss and others. From an order granting a temporary writ of injunction, defendants appeal.
    Remanded, with instructions.
    Cobbs & Cobbs, of San Antonio, for appellants.
    C. B. Bass, J. D. Martin, and A. J. Peeler, all of San Antonio, for appellee.
   FLY, C. J.

Appellee sought by this suit to obtain a divorce from her husband, Francisco Coss, and to recover from him and Guadalupe Ramos, it being alleged that he was living in adultery with the latter, certain diamond rings of the value of $4,000, her separate property, and her community interest in $50,000 cash, a large part of which, she alleged, was on deposit, in the name of appellants, in the Frost National Bank, the State National Bank, and Lacaud & Sons, in San Antonio, Tex. It was alleged that a portion of the money had been invested in a dairy business, near Kelly Field, Bexar county, Tex. It was alleged that ap-pellee was married to Fnandseo Coss in the early part of the year 1916, and that they lived together as man and wife until August 27, 1918, when her husband abandoned her, and has since that time lived in adultery with Guadalupe Ramos. It was alleged that appellee had no property .of any kind in her possession “for the support of herself and her boy child, who is one year and three months old, and is the son of the defendant Coss, and) that the property sued for would be lost, removed and materially injured.” A divorce and division of the community estate was prayed for and that a temporary injunction be issued restraining appellants from disposing of the property, from collecting the debts, and from paying debts, and also to restrain .the banks named from paying any money or delivering any property to Francisco Coss or Guadalupe Ramos. The temporary writs of injunction were issued, and from the order granting them this appeal has been perfected.

The first and second assignments of error claim error becadse the allegations fail to show.that appellee had resided in Bexar county for six months, and had been an actual bona fide inhabitant of Texas for twelve months next preceding the filing of the ■ suit. So far as the suit for divorce is concerned, those objections might be good, but would have no pertinency or importance so far as the suit of appellee for her property is concerned. If qualified in other respects to maintain a suit against her husband for her separate estate or her interest in the community estate, it would not matter whether appellee had lived in Texas at all before she instituted her suit. She found her husband with the property in Bexar county, and if she could maintain the suit at all, she could maintain it without reference to residence or citizenship. The comity existing between states and nations sanctions the rule that an inhabitant of another state or another nation has free access to the courts for the redress of wrongs or the prosecution of rights. This disposes of all points sought to be advanced in the first and second assignments, and they are overruled.

The petition for injunction is verified as follows:

“I solemnly swear that I am the plaintiff in the above styled cause, and that the matters set forth in the foregoing petition are true, except where the nature of the facts is such that it appears from the petition that I acquired the knowledge of same from information, and as to such facts I solemnly swear that I have acquired such information from credible persons, and that X believe the.same to be true.”

The affidavit sufficiently indicates the matters sworn to as true and those sworn to on belief. The essential facts were stated to be true.

The authority of the wife to institute suit for her interest in the community estate, which is being jeopardized by the fraudulent and unlawful acts of the husband, is not questioned by appellants, but we deem it proper to state that the facts alleged are such as, not only to authorize a suit for the separate property of the wife, but for the interest in the community estate. The allegations of the petition show that the husband without any just cause abandoned his wife and infant child, taking with him, not only the money belonging to the community estate, but valuable stones and jewels belonging to the wife in her separate right. Not satisfied with depriving her of every vestige of property with which she could maintain and support herself and infant, he deliberately entered into a state of adultery with his co-respondent, and is spending the money which should legally be expended on his wife and child on the woman, with whom he informed the wife he “would continue to live in adultery.” Appellee had cogent reasons for alleging that all the property “is in danger of being lost, removed and materially injured by defendant Coss.”

It would be intolerable and a blot upon the civilization of our age to entertain the proposition that a married woman under such circumstances would be incapacitated from prosecuting a, suit against her husband to protect her property from being squandered on the mistress of such husband. Such mediaeval doctrine finds no place in a system of jurisprudence which is endeavoring to keep step with the enlightened conscience of civilization and the benign conception of the rights of women that are entering the hearts and permeating the thought of progressive people throughout the world. Justice demands that when a husband) has proven untrue to the trust confided in him by the laws of the state in the management of the community property, and is ruthlessly defrauding the lawful wife of her means of support and lavishing her property on the companion of his lust, the outraged wife should have the' courts thrown open for her protection. Whatever may have been the common law of decisions of the past, Texas will not deny the right of protection to a married woman, under the facts alleged, both as to her separate estate and her interest in the community property of herself and husband. The statute gives the husband the control of the community estate, but he cannot be sustained when such control is exercised in fraud of the rights of wife. Speer, Law of Marital Rights, §§ 430-433; Dority v. Dority, 30 Tex. Civ. App. 216, 70 S. W. 338; Id., 96 Tex. 215, 71 S. W. 950, 60 L. R. A. 941; Heintz v. Heintz, 56 Tex. Civ. App. 403, 120 S. W. 941; Davis v. Davis, 186 S. W. 775. If the matters alleged in the petition are true, and they have not been denied and must be taken as true until disproved, a flagrant case of utter disregard of the rights of the wife has been shown, and the courts will be open to redress the wrong, and the benefit of injunction or other writs will be extended to her when demanded. Ryan v. Ryan, 61 Tex. 473.

No exception as to married women, in regard to bonds being essential in injunction eases, is made, and while such requirement would in many eases prevent redress by the wife whose property is being dissipated by an unfaithful husband, still it is so written, and the change whjich doubtless should be made in the law is a matter for the Legislature rather than the judicial branch of the state government. In some cases it has been held that the failure to require a-bond renders the injunction proceeding null and void, but in the case of El Campo Light Co. v. Water Co., 132 S. W. 868, it was held that a reversal of an order granting an injunction did not necessarily fQllow from a failure on the part of the trial judge to require a bond, and the court fixed a bond and remanded the cause, holding the injunction in effect until the bond was filed. If there ever was a case in which such power should be exercised by an appellate court, the facts in this case pres'ent it, and the judgment granting the temporary writ of injunction will not be reversed, but the injunction is continued in force, and the cause will be remanded to the district court, with instructions to require such bond from appel-lee as equity and a sound discretion would suggest under the facts of the case. Article 4654, Revised Statutes, does not require a bond in any certain sum, but leaves the matter so that no applicant for a writ of injunction need be deprived of a right by an onerous bond.

Remanded, with instructions.

On Motion for Rehearing.

The motion for rehearing is overruled, but our former order will be set aside, and the judgment of the trial court will be reversed, and the cause remanded, with instructions to the lower court to issue the temporary injunction prayed for, upon the filing by appel-lee of a bond in such sum as may be required by the district judge.
      r<fe=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    McNABB v. McNABB.
    (No. 1412.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1918.
    Rehearing Denied Dec. 11, 1918.)
    1. Divorce ©=>27(3) — Grounds—“Cruelty.”
    In an action for divorce upon grounds of cruel treatment, it is not necessary to show actual violence committed; “cruelty,” as used in statute, being broad enough to include outrages upon the feelings inflicting mental pain and anguish, where the conduct has been studied, willful, and deliberate.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Cruelty.]
    2. Divorce ©=>27(1) — Conduct Rendering Living Together Insupportable.
    Under statutes authorizing divorce for excesses, cruel treatment, or outrages rendering living together insupportable, husband is not entitled to divorce, unless cruelty of wife was intended to injure him.
    3. Trial ©=>261 — Refusal of Erroneous Instruction.
    Requested charge that acts or quarrels, the result of sudden outbursts of temper,'are not grounds for divorce, where not correct in its entirety, was properly refused, but sufficiently called court’s attention to omission.
    4. Divorce ©=>27(1) — Grounds — Marital Wranglings.
    Parties cannot be divorced for incompatibility, or because they live unhappily together, or merely because they possess unruly tempers, or for marital wranglings.
    6.Divorce ©=>148 — Cruelty—Instructions.
    In action by husband for divorce based on statute authorizing divorce for excesses, cruel treatment, or outrages rendering living together insupportable, Jlélói, under facts, that jury should have been instructed that, if conduct of defendant wife was due to her mental or physical condition, occasioned by the state of her health, there would be no cruelty under the statute.
    6. Divorce ©=>147 — Issues Not Raised by Pleading — Submission.
    Although recrimination was not pleaded, defendant wife had right to have issue submitted, where raised by the evidence,, since, even where there is no answer, it is the duty of the court to hear any testimony which, shows that plaintiff is not entitled to a divorce.
    7. Divorce ©=>53 — Defense—Recrimination.
    While recrimination need not be of equal degree, it must be of the same general character, and such as is reasonably calculated to have provoked the misconduct of defendant.
    8. Trial ©=>248 — Charge — Sufficiency in General.
    Where trial judge sought to leave to the jury, not only the findings of facts, but also whether in law they were sufficient to render further relation of husband and wife insupportable, he should have carefully applied the law to the facts, and not simply announced abstract propositions of law in his charge.
    Appeal from District Court, Oldham County; Reese Tatum, Judge.
    Action for divorce by C. N. McNabb against Ivy E. McNabb. From the judgment rendered, defendant appeals.
    Reversed.
    L. M. Kenyon, of Yega, and Veale & Lump-kin, of Amarillo, for appellant.
    Kimbrough, Underwood & Jackson, of Amarillo, for appellee.
   HUFF, C. J.

This action was instituted by appellee, C. N. McNabb, against his wife, Ivy McNabb, for a divorce. The petition is quite voluminous, and is based on the statute authorizing a divorce for excesses, cruel treatment, or outrages of one spouse towards the other, when the ill treatment is of such a nature as to render their living together insupportable. The petition specified certain acts of cruel treatment or outrages, some 23 acts or instances were testified to, most of which were alleged in terms in the petition. These specifications were followed by the general allegation:

“That each and all the acts and circumstances heretofore alleged constituted and were a series of studied and deliberate vexations and insults on the part of the defendant towards the plaintiff, and were intended and calculated to, and did, produce in plaintiff great humiliation, annoyance, and agitation, and caused him to fear the infliction of great bodily harm by defendant upon his children, especially upon his little daughter, and kept him in a state of constant nervousness, dread, and apprehension,” etc.

The evidence shows that the plaintiff was a widower, with six children, by a former marriage, and about 38 years old when he and appellant were married; that she was a school-teacher about 34 years old at that time; that they were married in May, 1916, and continued to live together as man and wife until some time perhaps in November. The acts alleged consist in neglect on hex-part to take proper care of the little girl, and the infliction of punishment on some of the children, the manifestation of temper and of harsh words used by her in the presence of others upon certain occasions, such as having his mother and two sisters in the car, going to his pasture and returning late after dinner, while she and the children were eating their dinner, that she ignored the presence of his parents and sisters, and occasions which manifest lack of sympathy for the appellee when his little girl was burned. On one occasion she inflicted a slight punishment upon the little girl for stopping in town, when she had told her to come home direct from school. The facts show the little girl saw her father in town and went to him, and he sent her on another errand, and upon return the child received the punishment. Another act was appellant told the little girl to wash the dishes, and her father was in the house, and the little girl went to him and told him she was sick. The father petted her and told her he would wash the dishes, and he did. The wife said the little girl was not sick, and just said that to keep from working. Appellee admits that he did not think she was much sick, but that he did not think his wife ought to have gotten mad. On another occasion three of the children on a rainy day were in an upper room making noise and disturbing the appellant, and she called them down and told two of the small ones they could go back, but'told one of the boys to stay down in the room and not go up. After remaining in that condition quite a while, the father says he thought the child had been sufficiently punished, and told him he could go back to the room, and as he started up the steps the wife caught the boy and slapped him for disobedience. On the occasion of going to the pasture in the car with his mother and sisters, the wife had requested them to wait until after dinner, and they would all go together; but he went nevertheless, and returned late after the meal hour. His wife then told him that she wanted the car that evening, and he said he would have to use it to go back to the pasture and fix his windmill. She said then she could walk to town, and, as we gather from the record, did so. We find no evidence that he ever invited her to go with him, either in the morning or afternoon, with the rest of the family, to the pasture, or that he offered to take her to town — said if she had asked him he would have taken her. On another occasion he promised the car to her, and it seems that he let his son and his son’s visitor take the car, and she manifested, as he thought, anger and impatience, she asserting that she would not get the ear and could not go out driving; but the boys did return in time, and they did drive until late that evening, and they came back, and, upon retiring, the little girl grew fretful, and wanted her father to come and lay down by her, which he did, and remained until he dropped off to sleep and slept all night. Going to his wife’s room the next morning she was indignant at his remaining away, and upbraided him about it, and he explained the situation and the occasion of his remaining away, and she said that if he wanted to sleep with -the girl to do so, and not to come to her room, and he then told her that it seemed that they could not live together peaceably, and that she could leave, and he would make provision for her, and give her money, and she could sue for a divorce. She told him that she did not want any divorce, and that she wanted him, and that she had done wrong, and asked his forgiveness, and that she would rather be dead than to live without him. He took his boys to Amarillo to place them on the train to go off to school, and it appears to be admitted that he consulted a lawyer, and when he got back home found that she had attempted to commit suicide, or, as he thought, just made a pretense, called for a doctor, and had her examined, who gave her some treatment. An empty bottle, which had contained chloroform, was found, none of which he thought she had taken; he called in another physician, and the evidence appears to be that he agreed to send her to Et. Worth to be treated for some nervous disorder, and that she did go to Et. Worth and was under treatment for a month; that while there he wrote to her not to come back home, but she did, and he then said without his consent she intruded herself on his home and family, and he finally filed this suit.

There are other incidents, such as having lost a knife, and calling up the children to ascertain if they had it, and insisting that they did, and that she at one time lost her purse, with some money in it, going through the same process that she did with the knife, and on one or two occasions insisting to her husband that she believed the children had her knife and purse. The knife was found in her closet, and she insisted that one of the boys had thrown it there. The purse was never found. Upon several occasions, after some of these unpleasant passages, she would take to her bed and stay from two to three days, and sometimes a week or longer, refusing food or attention from the rest of the family. There are many other incidents and particulars about these special incidents above named, which we do not try to make full, thinking perhaps this will be sufficient for an understanding of the general character of the alleged grounds of cruelty.

The appellant presented general and special exceptions to the petition, which were overruled, and upon which assignments are predicated. It will be unnecessary to consider the assignments specifically, as it is believed they may be sufficiently considered by a general discussion of the law conceived to be applicable to the record made, both by the pleadings and the evidence. Appellant apparently, in the court below and in this court, proceeded upon the theory, in order to entitle one to a divorce on the grounds of cruel treatment or outrages, there must have been actual violence committed, attended by danger to either the life, limb, or health, or a reasonable apprehension of such injury. It has been held repeatedly the ordinary meaning of “cruelty,” as used in the statute, is broad enough to include outrages upon the feelings, inflicting mental pain and anguish, such as a series of studied vexations, and deliberate insults and provocations, without apprehension of personal violence or bodily hurt. The ill treatment contemplated by the statute has often been held to include injury to the feelings and sensibility, as well as physical injuries. The early ease of Sheffield v. Sheffield, 3 Tex. 79, announced:

“It cannot be doubted that a series of studied vexations, and deliberate insults and provocations, would, under our statute, be sufficient cause for divorce, without apprehension of personal violence or bodily hurt.”

The above case appears to have been followed by our courts; but there have been a few discordant notes. Wright v. Wright, 6 Tex. 3; Jones v. Jones, 60 Tex. 451; Sharman v. Sharman, 18 Tex. 526; Williams v. Williams, 67 Tex. 198, 2 S. W. 823; Shook v. Shook, 125 S. W. 638; Aycock v. Aycock, 131 S. W. 1139; Dawson v. Dawson, 63 Tex. Civ. App. 168, 132 S. W. 379; Smith v. Smith, 200 S. W. 1129; Bahn v. Bahn, 62 Tex. 518, 50 Am. Rep. 539; Rivers v. Rivers, 133 S. W. 525; Le Fevre v. Le Fevre, 205 S. W. 842. Judge Speer says in his work (Law of Marital Rights, § 526, p. 674):

“It has been suggested that, where the evidence fails to show physical violence by the husband towards the wife, and fails to show such cruel treatment of her as to produce such a degree of mental distress as would- threaten to impair her health, it would be insufficient; but this is not the test. The test is whether or not it renders their further living together insupportable. And whether the conduct is that of the husband or the wife, the question remains for the jury whether it is of the character contemplated by the' statute.”

Under the first proposition contained in the above paragraph the author dtes, in note 10, Eastman v. Eastman, 75 Tex. 473, 12 S. W. 1107; Bush v. Bush, 103 S. W. 217; Ryan v. Ryan, 114 S. W. 464; and we may add Bloch v. Bloch, 190 S. W. 528. Under the last paragraph in the quotation some of the cases heretofore cited by us are cited, and also Cunningham v. Cunningham, 22 Tex. Civ. App. 6, 53 S. W. 75; Dority v. Dority, 62 S. W. 106; Ingle v. Ingle, 62 Tex. Civ. App. 205, 131 S. W. 241. The Eastman v. Eastman Case, supra, does not support the proposition that physical violence or apprehension of bodily hurt under our statute must accompany studied insults in order to establish cruelty. That case holds to the contrary. The cruelty required must be “o± such nature as to render their living together insupportable.” Judge Gaines says in the above case:

“But, excluding the exceptional case of Wright v. Wright, 6 Tex. 3, in which the cruelty alleged consisted in part of the murder of the plaintiff’s son by her husband, we believe that no decision of this court can be found in which a judgment for divorce on the ground of cruelty has been permitted to stand, in the absence of some degree of physical violence, except those in which the husband had accused the wife of infidelity. Jones v. Jones, 60 Tex. 461; Bahn v. Bahn, 62 Tex. 518 [50 Am. Rep. 539], This course of decision seems to have led to the conclusions of law announced by the learned judge who tried the ease below. But it does not follow that, because no such decision can be found, a case of cruelty sufficient to justify a decree may not exist, in which neither personal violence nor an unsupported charge of adultery is found as an element. In Wright v. Wright, supra, the refusal by the husband of medical aid to the wife during a violent attack of sickness was one of the acts of cruelty alleged as grounds for a divorce, and in the opinion was relied upon as one of the averments upon which the sufficiency of the opinion was sustained. An alleged order to the family physician not to attend upon the wife in case of illness, though no sickness actually existed at the time, was treated, in the leading case of Evans v. Evans, 4 Eng. Ecc. R. 350, as if it might be deemed an act of cruelty; but it was held that the allegation was not sufficiently proved.”

See, also, Sapp v. Sapp, 71 Tex. 348, 9 S. W. 258; McAlister v. McAlister, 71 Tex. 695, 10 S. W. 294.

Though the statute may allow a divorce for conduct inflicting mental pain or distress, our courts have held such conduct must have been studied, willful, and deliberate. The facts of this case call for a recurrence to the purpose of the marital relation which should have at all times a just influence upon the mind, and those purposes cannot be better stated than in the language of Judge Hemphill, in the case of Sheffield v. Sheffield, supra, which, at the risk of tediousness, we quote:

“The parties have pledged themselves, not only for their own happiness, but for purposes important to society, to live together during the term of their natural lives. This engagement is the most solemn and important of human transactions. It is regarded by all Christian nations as the basis of civilized society, of sound morals, and of the domestic affections; and the relations, duties, obligations, and consequences flowing from the contract are so important to the peace and welfare of society as to have placed it under the control of special municipal regulations, independent of the will of the parties. The mutual comfort and happiness of the parties are the principal, but not the only, objects of the engagement. It is intended also for the benefit of their common offspring, and is an important element in the moral order, security, and tranquility of civilized society. The parties cannot dissolve the contract, as they can others, by mutual consent, and no light or trivial causes should be suffered to effect its rescission. While full effect is to be given to the statute, it should be remembered that, according to the experience of the most enlightened nations, the happiness of married life greatly depends on its indissolubility, and that the prospect of easy separation foments the most frivolous quarrels and disgusts into deadly animosities. Parties may not be able to live together very harmoniously, but they cannot be separated, except for reasons, approved of by the law. And when they know they must live together, except for causes prescribed by the law, they learn, in the language of Lord Stowell, ‘to' soften, by mutual accommodation, the yoke which they know they cannot shake off; they become good husbands and wives from the necessity^ of remaining husbands and wives; for necessity is a powerful master in teaching the duties it imposes.’ Such construction ought to be given the statute, and such weight allowed the acts of the parties, as would effect the legislative intention; but there should not be such looseness of exposition as would defeat the beneficial objects of the marriage institution, and sunder its bonds with almost as much facility as if it were a state of concubinage, dependent alone on the will of the parties.”

Again, the facts of this case call for the wise caution suggested, in the case just quoted:

“The jury may have, perhaps, labored under erroneous, but somewhat prevalent, impression that persons who do not live very agreeably together, and who, in point of fact, are separated, should in law be divorced. Whatever opinions they may entertain as private persons, they are not, in their official capacity as jurors, to inquire whether the happiness of the parties might not be promoted by separation, or whether there has been a want of that tenderness and affection which should characterize the matrimonial relation, but whether the acts proved are such as to destroy the happiness of married life and render its further continuance insupportable.”

Oare should be exercised in charging the jury or submitting the case in divorce suits. Judge Lipscomb’s statement in Byrne v. Byrne, 3 Tex. 336, ought to be, and we believe is, yet the rule:

“It is not sufficient that a jui-y • has found that outrages have been committed of such a nature as to render their living together insupportable. What is meant in our statute by ‘insupportable’ and ‘outrages’ is a question of law. The existence and truth of the facts that amount to such outrages are for the jury to find.”

In this case there is a general verdict under a very general charge. Just what acts or conduct the jury found true or cruel, and of such a nature as to require a decree of separation, we are left to surmise. Some of the acts are trivial, and the supposition that these are just causes for a divorce is preposterous. In fact, none of the acts within themselves can be said to be cruel within the meaning of the statute. Many of them evidence petulance, occasional sulkiness, or freaks of temper. The authority exercised by appellant over the children does not appear to have been cruel or excessive, and the issue is suggested that she acted within her rights as the wife of appellee, as well as by his invitation. So we think the evidence raised the issue as to whether some of the expressions of anger by the wife did not find their matrix in tire apparent neglect or indifference of the husband. The husband in this case admitted that he did not love his wife, and admits that he bluntly so told her, while she protested that she cared for and loved him, and, when he offered her money to leave him, she told him she did not iwant any money, but wanted him.

íhe general charge of the court defining cruelty perhaps is correct as far as it goes. The cruelty must have been intended to injure the husband, and must appear to be an act prompted by a desire to injure him. Sapp v. Sapp, supra. The cruelty or outrage must have been directed towards him. The facts raise the issue that in punishment of the children appellant was acting within her rights; that the punishment inflicted on the children was perhaps the result of the husband acting at cross-purposes with her, and had directed the children contrary to her wishes; that he, on occasions, knew she wanted to accompany him in the automobile drives and rides; that he took others, or let them have the ear, without inviting her to go with him, or the like. A sensitive woman may readily have felt that she was neglected, ignored, or outraged in that particular, and have resented the cojn-duct of her husband.

The requested charge No. 2 called to the court’s attention that acts or quarrels, the result of sudden outbursts of temper, or incompatibility of temper, are not grounds for divorce. The charge as requested in its entirety was not correct, and as requested was properly refused; but we think it sufficiently called the court’s attention to this omission. The rule in this state, as well as in others, is that parties cannot be divorced for incompatibility, .or because they live unhappily together, or merely because they possess unruly tempers, or for marital wranglings. If the acts of appellant were only from sudden outbursts of temper, the acts complained of would not have authorized a divorce; or if any such acts were the result of sudden temper, and not intended to injure the appel-lee, the jury should have been told to disregard them. The acts in this case were not within themselves cruel. They were only so if they were willful, and for the studied purpose of inflicting injury upon the appellee. The acts must have arisen from a motive to causé suffering to the appellee. The appellant was entitled to have this phase of the case presented for the consideration of the jury.

We think, under the facts of this case, the jury should have been instructed, if the conduct of appellant, or any of her acts were induced by her mental or physical condition at the time, occasioned by the state of her health, that they would not be such acts or conduct as would be cruelty under the statute, nor would any of such of them that were so occasioned. While the charge requested was coupled with the issue of estop-pel, which, as we view the case, was unnecessary, yet the physical and mental condition of the appellant was raised by the evidence.

Again, the appellant asked a charge upon recrimination as a defense. This was refused. It is insisted that there is no evidence of recrimination. We are inclined to think there is, as heretofore suggested. All the acts charged as cruel are such as may frequently occur in the marital relation under the circumstances surrounding this one. Perhaps we should not discuss the facts, but we think that issue is raised by the record, and the court should have submitted that issue. It is insisted that there is no allegation of recrimination in appellant’s answer.

“The rules of pleading which apply in other cases do not apply to a defendant in a divorce case in this state, and, although he may have no answer at all, it is the duty of the court to hear any testimony which would show that the plaintiff is not entitled to a divorce. Bostwick v. Bostwick, 73 Tex. 182, 11 S. W. 178.” Hartman v. Hartman, 190 S. W. 846.

As to the character of misconduct which will raise the issue of recrimination, we believe the rule is correctly stated in the following:

“In order to defeat the right to a divorce, while it [recrimination] need not be of equal degree with that of the defendant, it must be of the same general character, and such as is reasonably calculated to have provoked the misconduct of the defendant.” Bohan v. Bohan, 56 S. W. 959, and authorities cited.

With regard to appellant’s right to exercise reasonable control of the household affairs, and to correct the children, the appellant, by requested charge No. 5, requested the submission of that issue, and we regard the application of the law to the facts as there sought to be applied suDstantially correct. It is true the court had given special charge No. 1, which in effect is simply an abstract enunciation of appellant’s right in the home of appellee, yet it did not attempt to apply the law to the facts, while the requested charge No. 5 does substantially do so.

In .reversing this case, we desire to say that we regard the charge of the court as being very general, announcing simply abstract propositions of law. Inasmuch as the court sought to leave to the jury, not only the finding of the facts, but also the question whether in law they were sufficient to render the further relation of husband and wife insupportable, we believe he shojuld have carefully applied the law to the facts, so that the jury could have determined the rights of the parties, and whether the acts were such in their nature that the marital relation should have been sundered.

We believe the judgment should be reversed; and it is accordingly so ordered.
      ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes