170 S.W. 111 | Tex. App. | 1914
Appellant sued appellee, her husband, for divorce, the grounds urged being certain enumerated excesses, outrages, and cruel treatment of such a nature as to render their living together insupportable, and due to which appellant separated from appellee within about two months after their marriage and lived apart from him more than a year prior to filing this suit. Appellee specifically denied the truth of all the allegations urged by appellant, and affirmatively alleged that appellant did not in fact desire separation from him, but was induced to leave him by the influence, persuasion, and domination of her mother, who had always opposed the marriage of appellee and appellant Upon trial before jury verdict was for appellee, denying the divorce. Judgment was in accordance with the verdict. The testimony supports the verdict of the jury, and for that reason it becomes unnecessary to detail the evidence.
The first assignment of error complains of the second paragraph of the court's charge. By said paragraph the court told the jury that if they believed "plaintiff separated from defendant and now seeks a divorce from him because of the influence, if any, of her mother over her, and not because of the excesses, cruel treatment, or outrages towards plaintiff by defendant, * * *" to find against appellant. The proposition urged in connection with the quoted charge is that same is misleading and makes appellant's right to divorce turn wholly upon whether appellant's mother influenced her to bring the suit, and not upon the truth of the allegations of appellant's complaint. For the purpose of correcting the main charge, appellant requested the court to charge the jury "that no matter whether * * * plaintiff's mother opposed the marriage of plaintiff and defendant or their living together or not, still if you believe from the evidence that defendant was guilty of cruelty that would render the living together of plaintiff and defendant insupportable to plaintiff," to find for appellant. This requested charge was refused by the court, and we conclude the refusal was error, since the evidence upon the issue of the influence of appellant's mother was conflicting, and would have supported a finding by the jury either way. The effect of the charge was to tell the jury, even though the charges of cruel treatment, excesses, etc., were believed to be true, to nevertheless find against appellant, if her mother "influenced" her to to bring the suit. We do not believe it is sound in law to say that a legal right is lost because the one to whom the right accrues is influenced or induced by another to assert it. Particularly is the rule unsound as applied to a proceeding for divorce for two reasons: First, because, as was said in Blackburn v. Blackburn,
"Not every influence brought to bear upon the mind of a testator by a beneficiary will be classed as undue influence. Persuasion, entreaty, cajolery, importunity, argument, intercession, and solicitation are permissible, and cannot be held to be undue influence, unless they subverted and overthrew the will of the testator, and caused him to do a thing that he did not desire to do."
It is further said in Smith v. Smith, supra, as original comment, and applicable to the case at bar, that:
"By the very nature of the marital relation the wife as a rule does have, and ought to have, influence over her husband, but such influence is not regarded by the law as undue influence. To be such under the law it must be so great as to overthrow the mind of the husband, and the wife's will so dominate his that hers is substituted for his and what he does is not of his own free will, but her judgment is substituted for his and his acts are not in accord with his own desires or wishes."
None of the definitions or modifications of the rule of undue influence just stated was submitted by the court to the jury in the instant case, notwithstanding such rule was the one pleaded by appellee and under which all testimony in relation to that issue was developed, and it was improper to charge merely upon the issue of influence without defining same and modifying the application of the rule.
Appellant also requested the court to charge the jury "that a single act of personal violence by the husband to the wife as a blow with the fist or hand may be sufficient cause for divorce." Said special charge was refused and such refusal is assigned as error. Miller v. Miller,
It is also argued, though not covered by any objection or requested charge, that the court's instruction on the burden of proof required appellant to disprove appellee's allegations of undue influence on the part of her mother. The burden of proof never shifts from the plaintiff at trial to establish the affirmative facts necessary to sustain his or her cause as portrayed by the pleading. Southwestern Telegraph
Telephone Co. v. Luckett,
For the reasons indicated the judgment will be reversed, and the cause remanded for another trial.