On February 18, 1914, the appellee filed this suit against the appellant, seeking damages for certain slanderous statements made by him concerning her. The offensive language was used by the appellant in talking to the father of the appellee, was, in substance, that she was four months advanced in pregnancy at a time when she had been married only about * seven weeks. The date of her marriage and other facts essential to show that the statements were designed to impute a want of chastity to the appellee were properly pleaded. It was also alleged that the appellee was a married woman at the time this suit was filed, but that her husband was the son of the appellant, was living separate and apart from her, “and will not join her in this suit, and has failed to bring any suit against .the defendant in this behalf.” She asked for damages, both actual and exemplary. The appellant answered denying all the material averments of the plaintiff. In reply to that portion of the petition which alleged cover-ture and the failure of the husband to join in the suit, he merely denied “that the plaintiff’s husband had refused to join her in bringing the suit against this defendant.” The material facts are, in substance, as follows: The appellee’s maiden name was Jessie Landrum. On January 4, 1913, when she was about 18 years of age, she was married to Ben Davis, then about 20 years old, the son of the appellant. The couple lived together at the residence of the groom’s parents until some time during the following February, when they separated and have since lived apart. A day or two after the separation a conversation took place between the appellant and W. I-I. Landrum, the father of the appellee. Each gives a different version as to what was there said. The appellant testified;
“When I spoke to Mr. Landrum about it I was in my wagon in Johnson county. I spoke about the matter first. Told him I had bad news to *777 tell him. I had something to tell him that was bad, and I hated to tell him. I had three wagons carrying over a load of cotton, and I was driving the front team, and my boy (appellee’s husband) the second team; and Mr. Landrum and his wife and the plaintiff were in the third wagon, behind me and my boy. I stopped and told my boy to tell Mr. Landrum that I wanted to talk to him some, and he got in the wagon with me. * * * I told him that I had got a note, or a letter, from my wife, and she said she had told the boy that the girl was in a family way, and that the boy said it was not his’n and that he had quit her; and Mr. Lan-drum said: ‘It is a damn lie; it is his;’ and I said, T don’t know, Mr. Landrum, whose it is, but she looks like a woman that is three or four months gone.’ That conversation took place on the. day that the boy quit her, about the 25th of February. * * * At the time that I had the conversation with Landrum, there on the road when I stopped, and him and me talked in the wagon, that was not in response to any question that Landrum had asked mo. * * * I stopped and started the conversation off with the statement that I had some bad news to tell him.”
Landrum testified:
“The first conversation I had with Mr. Davis about this matter was on the road from Cle-burne. We had come out from Cleburne about a couple of miles, I reckon, and Mr. Davis motioned to me to get out of my wagon and come get in the wagon with him; and lie says to me, he says, ‘Landrum, I have got something to tell you.’ Say I, ‘Cut loose,’ says I, ‘what is it?’ He says: ‘My son and your daughter has separated.’ Says I, ‘What is the matter?’ ‘Why,’ he says, ‘your daughter is four months gone;’ that is what he replied to me. * * * Shortly after my daughter and her husband had separated I had occasion to see Adam Davis, the defendant, at his home. I went to see him and proposed to him to, ‘Let’s get those children back together. This is all foolishness;’ and he says, ‘No, never; your daughter is four months gone, and my son never shall live with her no more.’ I says, ‘Mr. Davis, you are mistaken;’ and he says he was not. I talked on, and I says: ‘Mr. Davis, I can ruin you with the law, the way you have talked with me about my girl;’ and he says, ‘You cannot do it, I have seen my lawyers, and if you want to do anything you crack your whip; I am ready.’ I think that was somewhere about the second or third day after the separation, the best I can remember.”
The appellant further testified, in substance, that when he said, the appellee was “four months gone” he meant that she was four months advanced in pregnancy at that time. There appears to be no controversy that all parties so understood the language he employed, and that it imputed to the ap-pellee unchaste conduct prior to her marriage with Ben Davis. In response to special interrogatories propounded the jury found that the defamatory statements charged imputed to the appelíee a want of chastity, that they were false, and that the appellant knew at the time that they were untrue, and uttered them' maliciously. Upon these and other answers the court entered a judgment in favor of the appellee, for the sum of $2,-500 as actual damages.
The first group of assigned errors attacks the right of the appellee to prosecute this suit alone. It is urged that the damages sued for constitute community property, and that neither the pleadings nor the evidence presents a case which a married woman may prosecute without the joinder of her husband. It is contended that the wife in bringing a suit of this character must allege and prove, not only that she is separated from her husband, and that he refuses to join her in the’ suit, but that he has failed to support her,, and that she is in need of the community funds for which the suit is brought.
The appellant relies upon the case of Ifizell v. Dodson,
“The petition in this case does not give ns the circumstances of the separation, or the length of its continuance. It might have been of very recent occurrence, and we cannot presume as to the causes which produce it, or charge one party with fault rather than the other. It is only stated that the parties are living separate, and that the husband refuses to join in the suit. The mere fact that husband and wife are not living together does not authorize the wife to sue alone in any case where she could not thus sue if they were not separated. The refusal of a husband to become a party to an ordinary suit to recover community property would not give the wife the power to sue alone, when they were living together, and he was exercising rightful control over the common estate. She could not, contrary to his wishes, assume control over such estate and bring a suit for its recovery; and his refusal to join in such an action would be sufficient to defeat it. An ordi *778 nary separation, and much less one caused by her own unprovoked abandonment, would not give her more rights in this respect than she would possess if living amicably with her husband. * * * Oases might, perhaps, arise where the wife could, under their peculiar circumstances, sue alone for a trespass to her person, whether she lived with her husband or apart from him. A less aggravated case of abandonment on his part might be sufficient, in some instances, to give her this right, or if he was accessory to the outrage, or in other cases which might be mentioned, the wife would doubtless be allowed to maintain the action alone. It will be sufficient to decide the law of such cases when they arise.”
It will be observed that in the above case a special exception had been interposed questioning the sufficiency of the petition, and it was in sustaining that exception that the court used the language quoted. Here there was neither exception nor plea in abatement. When the defendant in a proceeding of this character makes no effort to abate the suit upon the ground of coverture, he cannot, after judgment on the merits, for the first time raise that objection. That is a matter of defense which he may waive. M., K. & T. Ry. Co. of Texas v. Allen,
“The broad principle is asserted, in the case from Sergeant and Itawle, that the desertion of the husband, and the cessation of his wonted duties, vest a separate property in the wife, in the acquisitions made during his desertion.”
The right to recover damages for slander constitutes a chose in action, and in this instance it arose after the desertion by the husband. But it is immaterial whether the damages here recovered should be treated as separate or community property, in vievi of the fact that it belongs to that class of the property to which the wife would have a perfect right to resort for support of herself and child.
*779
The remaining assignments are overruled, and the judgment of the district court is affirmed.
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t&sjt’or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes