162 S.W. 375 | Tex. App. | 1913
This suit was brought by the appellant Alta Kirkland joined by her husband, against appellee George C. Matthews and wife for the custody of four minor children of appellee, viz., George Cade Matthews, Margaret E. Matthews, Claude P. Matthews, and Mary Julia Matthews. Appellant alleged that she was the aunt of the minors, and that the mother of the minors is dead, and that just prior to her death in 1907 she requested appellant to take upon herself the care and custody of the minors, and that upon this request and by the acquiescence of George C. Matthews, their father, the appellee, she took the custody and care of the minors, and had retained the same since May 27, 1907; that she is the proper person to have such care and custody, and it would be to the best interest of the minors, and that their welfare would be best subserved for them to remain with her, and that the defendants are unfit for their care, especially Mrs. Matthews, their stepmother. She further alleged that Mrs. Robinson, the mother of Mrs. Matthews, who was a member of defendant's family, was afflicted with tuberculosis, which rendered it dangerous for the minors to live in defendant's home.
After this suit was filed, the appellee, alleging that three of his minor children were illegally restrained of their liberty by the appellant Mrs. Kirkland sued out a writ of habeas corpus for their release, his purpose being to obtain their custody in this manner. Afterwards the appellants' suit and the appellee's application for the writ of habeas corpus were consolidated, and this was not objected to by either party. The case was then tried before a jury, and after the evidence was all in the court submitted to them the following charge:
"You are instructed by the court in this case that the burden of proof rests upon Ed. Kirkland and Alta Kirkland, plaintiffs in this case, to prove by a preponderance of the evidence that the best interest of the children demand that George C. Matthews, their father, should be deprived of their custody before you can find in favor of Ed. Kirkland and Alta Kirkland.
"Now, if you believe from a preponderance of the evidence that the best interest of the children, George Cade Matthews, Margaret E. Matthews, Claude P. Matthews, and Mary Julia Matthews, will be subserved by giving the custody and care of said children to Alta Kirkland and Ed. Kirkland, you will find for the plaintiffs.
"If you believe that the welfare of the children will be equally subserved in the custody of either plaintiffs or defendants, then you will find for the defendants.
"If you believe that the welfare of the children would be best subserved by giving the custody of the children to George C. Matthews, then you will find for defendants.
"You are the sole and exclusive judges of the facts proved, of the credibility of the witnesses, and the weight and value to be given to their testimony, but the law you receive from the court in this written charge, and you are bound to be governed thereby.
"If you find in favor of the plaintiffs, Ed. Kirkland and Alta Kirkland, the form of your verdict will be: `We, the jury, find for the plaintiffs.'
"If you find for the defendants, the form of your verdict will be: `We, the jury, find for the defendants.'" *376
Acting under this charge, the jury returned the following verdict: "We, the jury, find in favor of plaintiffs." Upon return of this verdict, the court, notwithstanding the verdict was in favor of plaintiffs, rendered judgment in favor of defendant, awarding to him the custody of the minors; and this action of the court is made the basis of the appellants' first, second, third, fourth, and fifth assignments of error, and these assignments must be sustained.
Article 1994, Revised Statutes 1911, provides: "The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled, either in law or equity." The evidence in the record warranted, although it did not compel, a finding in favor of appellant. We think that, upon the coming in of the verdict, the court was bound to follow it in entering judgment thereon and was not authorized to enter judgment contrary thereto, even though the trial judge should be of the opinion that the verdict was without evidence to support it, or that it was so against the great weight and preponderance of the testimony as to be clearly wrong. This question has several times been before the Supreme Court of this state, and it has uniformly held that the verdict must constitute the basis of the judgment. In one of the earlier cases, Claiborne v. Tanner,
Plaintiff offered to prove that a member of the defendant's family was afflicted with tuberculosis, a contagious and dangerous disease, but, upon the objection of defendant, this proof was rejected. The purpose in offering proof of this fact was to show that the minors, should they be awarded to their father, would come in close association with one suffering from a dangerous and contagious malady, and that this was a circumstance to be considered in determining whether the best interest of the minors would be subserved by placing their custody with appellee. We think the testimony was admissible upon the issue suggested, and that the court erred in rejecting it. Patton v. Shapiro, 154 S.W. 688. What is for the best interest of the children is the question of prime importance in cases of this kind, and any evidence showing or tending to show that their welfare would not be best subserved by placing them in the custody of a contending party should be admitted and considered.
In concluding this opinion, we think it is well to call attention to the case of State v. Deaton,
For the errors indicated, the judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.