United States Fidelity & Guaranty Co. v. Dowdle, 269 S.W. 119

Tex.) <S DOWDLE GUARANTY CO. v. FIDELITY ¡.W.) (269 1175(2) jury’s <&wkеy; Appeal 8. and error —Where ful- verdict is has been unsupported & GUARAN- STATES FIDELITY UNITED will ren- ly of Civil developed, Appeals Court 9332.) (No. TY DOWDLE. CO. v. judgment der such court below should have as Appeals (Court Dallas. Texas. of Civil rendered. Rehearing Denied 1924. Oct. support is Where there evidence no 31, 1925.) Jan. jury’s fully develop- case has verdict reversal, ed, Appeals has au- on of Civil Court <&wkey;930(l) view- error 1. Appeal —Evidence thority judgment render as such court below sustaining jury. light verdict ed rendered, judgment is bas- whether light appeal, viewed On evidence will be jury’s findings verdict, or a ed on as a verdict jury. sustaining verdict of general on submission. Rehearing. On Motion for Marriage <&wkey;50(5) 9. —Valid &wkey;>218(2) change riage pro- error Appeal 2. shown no not to exist where —Statute viding be conclusive shall verdict special inhibition. removal of relationship construed. between parties, as not Valid common-law shown special providing where, repute, that a St. art. to exist cohabitation Rev. shall, same, conclusive entering be between one of verdict pro- lawfully found, notwithstanding means that to facts on, special by divorce, ceeding verdict is relations were in which inhibition their therewith, prop- change issues, being with- continued dissatisfied thereafter out and without below, validity question erly court its take other for each special jury’s finding is- this, failing on do facts conclusive becomes submitted sues toi Marriage @=>22 and repute 10. —Cohabitation parties. found not constitute do Judgment <&wkey;198 —Court not authorized repute 3. Cohabitation not constitute do rendering judgment to dis- verdict only evidence, special on marriage, ship presumption relation- when on a material finding regard issue. jury’s meretricious, tending is raise a rendering strength according is not authorized or less court on a of more Trial disregard jury’s special judgment verdict to circumstances. though issue, such finding a material on (I. — Marriage Marriage @=>40(4) be testimony. cannot support finding has an illicit cohabitation. presumed jury’s <&wkey;l64 presumed set aside Marriage may 4. New trial illic- —Court be from an cannot findings on ‍‌​​​‌​‌​​‌‌‌​‌​‌‌​‌​‌‌​​​​‌‌‌‌​‌‌​​‌‌‌​‌​​​‌‌​‌‌‍issues whole. as a special cohabitation. jury’s may, motion, find- aside Court on Marriage @=>40(1) cannot 12. grant —Courts special ings on as whole issues mere without trial, them and set aside but cannot consent. and there- set aside his own those substitute on marry parties pre- cannot mere Courts judgment. render consent, sumption law com- since without I) <&wkey;350( pels held to re- only Trial matrimonial status. no one assume 5. —Statute of a cause submission trial court limit quire Marriage pleadings <&wkey;l8 evidence. to issues raised —When 13. status Sayles’ arises, stated. art. St. Ann. Civ. Vernon’s only 1984a, requires Marriage to submit and trial court status arises where special only capable contracting, on issues of a cause submission are not untarily of so vol- limit by pleadings and'by assume, evidence. raised to issues consent to mutual con- assume, do tract relation. — <&wkey;355(l) Statute held require Trial 6. finding jury any spe- evidence sustain Marriage — Marriage &wkey;>50(5) be 14. may cial issues. circumstantial evidence. shown by special 1985, providing St. art. Rev. may Marriage circumstantial shown must find facts established evidence, infer- well direct requested issue submitted and not repute cohabitation and red continuous as found court to shall be demanded prevent pre- nothing raising appears, (cid:127) judgment, if there to sustain by proof sumption facts. of such created finding, requires that shall be evi- special finding dence to sustain issues. — Marriage <&wkey;4fi(4) Illicit cohabitation 15. in absence proof continue, change relation. @=51175(2) and error Appeal —Power inception illicit, If cohabitation Civil Appeals ferred judgment Courts render continues, presumed that such relation will in absence of court below should have ren- proof of of relation. judgments. dered to all applies conferred on Courts of Power Civil 10(1)— not mutually Contracts Contract <©=> by as 1626, to Rev. St. art. render binding void for want mutuality. rendered, applies court below should have binding mutually void for A judgments, limitation to mutuality. .of want jury’s general findings verdict or based on dissenting Looney, J., issues, or rendered on motion for rehear- ing. trial. Digests Key-Numbered topic see and Indexes other cases and KEY-NTJMBERin all same ©soFor (Tex. 269 SOUTHWESTERN REPORTER Appeal Court, Dallas Coun- from District ties to become then and thenceforth wife; agreement -Wilson, Judge. ty; become hus- Douis good band and wife must a faith and of against Proceeding by Mary Dowdle permanent nature to the extent of Guaranty Fidelity Com- United States & performed statutory is man- pany Board before tbe Industrial Accident exist, ner. When these a elemеnts such mar- Judgment riage complete.” plaintiff, for an award. is appeals. ‍‌​​​‌​‌​​‌‌‌​‌​‌‌​‌​‌‌​​​​‌‌‌‌​‌‌​​‌‌‌​‌​​​‌‌​‌‌‍defendant rendered. Reversed passing upon questions present [1] In See, also, W. 388. S. 255 S. W. propositions, necessary ed said is Seay, Seay, Dallas, BipSeomb, & Malone light strongest do feature of appellant. sustaining the evidence White, Craig of Dal- J. *W. and John both jury. Therefore we have from the culled appellee. las, for mass to all portions bearing thereof the issue re appeal VAUGHAN, second This J. solved favor the find appeal a from ings jury. of judgment The former was this case. appellant, was which in favor reference contract Fidelity & alleged S. affirmed. See Dowdle U. to have been made and between Guaranty (Tex. App.) 242 S. W. appellee deceased, Dowdle, Co. Civ. and the Bueius appeal, Appellant, whereby appellee obtained writ said claims she became and was hearing, judgment error, and, on the common-law wife of said decedent at the re demise, appellee was time affirmance reversed and of his testified fol- lows; proceedings. See Dow for further manded Fidelity Guaranty U. S. Co. dle v. & “I knew Bueius I Dowdle in his lifetime. App.) 388. For statement 255 S. W. Com. Queen street, City, first met him on Battimer pleadings to and we refer of adopt living place. Queen where I was on Joe Greer’s Id., appeal. City made on former my statement is in South Dallas. That first ac- was quaintance pre- with him. I had S. not known him 242 W. 771. vious to the time he came to house. I al- ap- The case trial lege my petition that We had been along that some time about peal prosecuted was submitted to myself time Bueius married. special issue, to wit: at the he was time you year “Do find and believe from about or He a better. was lulled me, on, out, going picking that there a common-law off worked plain- deceased, Dowdle, cotton; and the Bueius he said he me him I liked all liked Mary herein, right, says tiff Dowdle?” and he he would take care of me and right, says, you treat me all ‘Bet’s andme jury answered, “Yes,” marry.’ which the To says, right,’ just I ‘All and we went' people. on which verdict trial like married I in the same lived supported me, appellee. house with him and he and I I favor kept he worked him and him. house for presented by controlling ap- issuе on him waited was sick. lie- When peal the com- is whether subject me, mentioned he wife of one Bueius Dowdle at mon-law time of his demise. just said, married,’ get right ‘Bets and went Therefore, we boarding ahead. he had been with me before He assignments prop- of error and consider the marry proposed year.- me about After pertinent relating thereunder ositions proposed me, accepted I him which, think, compre- thereto, keeping all of we ‘went house as husband and wife. During following the time with him propositions I lived as his hended ad- loyal I tended I was him his true to at- by appellant: andi vanced to all duties of the wife'in the home. (a) person living spouse, Where has way him at time person incapable performing a val- his death. the time At I entered this mar- id common-law riage single woman; single I I had (b) Where a is once shown ex- years. years- During about 18 the two or three ist, it is continue until to his death I lived and cohabited with slept trary him, him, shown. worked for stayed for him. and a After washed he had (c) about To constitute a valid common-law mar- year, says: you Griffin, ‘Mrs. will be riage requires good the same faith aas stat- you help good you married I will and be and you utory marriage. you you, treat nice and take care of (d) The evidence in this cause shows that ” work,’ him, right.’ won’t have I told ‘All did "valid common- with deceased. making In reference date proposition The issue embraced alleged marriage first this knowledge contract and as to her jury by submitted to the deceased, Dowdle, Bueius portion explanatory charge, by legally which that time married one Callie guided reaching living, appellee an who was then testi- swer to the one issue submitted: fied: requires “To constitute such saying “I ’aint I know that Bueius had wife "only par- contracting just Dowdle; callable named Callie heard him talk- FIDELITY, Tes.) i GUARANTY CO. DOWDLE (269 t.W.) deceased, Dowdle. wife and had a it. beard about him; away all preacher by circumstances, appellee that was took her Aided fixed began it; liv- after we about that was I knew ing together. living live date of the time the contract at about we went He me during told deceased, received the together, did we letter in reference the suit for divorce together, named Oallie a wife he had against that had beeh filed him Callie away preacher Dowdle, took and that a pro entry tunc of Dowdle. The nunc him, time started we said about the and he from living together in said suit establishes rendered go to he would that believed he preacher, up the fact that said suit was filed on the 13th this clean San Antonio day October, 1915; about his acceptance told me him out of it. He of I talked that of ser- he came close to where San Antonio wife from; vice of citation in said was made I in San Antonio. had he a wife that Dowdle, prior therein, the defendant you exactly it was he after how soon cannot tell 22, 1915, to his November for that date stay my to before commenced there he came acceptance of filed service was in the court he to set the time I date as room. didn’t pending. which said for divorce suit was My judgment sleeping me. commenced with only marriage contract entered year time; some the fall it of about was deceased, Dowdle, appellee December, with Christmas in and we it after go just together. began That before to of was between the dates November 22, 1915; October 13 got Christmas, mind on thаt. I have 22, 1915, November year spring of the next summer It making time of the of that at the wife; another him he had learned from that I same, of decedent the lawful husband right. had think is He told me he I Dowdle, appellee one Callie of which status got letter, know* He a don’t what I & notice; at that that nunc time had said along spring was, after Christ- it time pro judgment entry tunc shown stated, a mas. The ‘Just want divorce.’ letter day November, 1915, the 22d of of paid bonds said had it. He attention to he Never a letter matrimony existing a divorce. his wife and she wanted theretofore de from this dissolved, showed me the time he I think was after cedent and Dowdle Oallie together. agreed had to live I that we letter and from that date to death of up to the time his never discussed wife with togeth and decedent lived got had know he the letter. didn’t he I contracting er without to become then and got we I think until the letter. he a wife; thenceforth husband that at agreement had made the attempted parties time said enter into time, We went as remember. as near I can marriage state, Dowdle, the letter me as soon he showed decedent one of aheаd as any time, but contract. didn’t made the I contracting parties, legal was under in such letter, got think. don't I I he after existing hibition, wit, marriage with gotten anything a about whether know divorce Dowdle, prevented Oallie he was we or not when made from his wife contracting marriage appellee. a with got a di- contract. I don’t know try The fact together, cohabiting said continued to find out. I didn’t his death. vorce before testify sleeping Lu- as husband and with I had been I did playing long started cius of is not said wife; before we it was don’t know whether sufficient to a in fact after show just wife; agreed we to become husband impediment; the quent no removal subse of signed right for the divorce. on after he went We went ed hav to enter into state contract said sign- right living together after ing been said been have shown to divorce; after that we com- it was for the parties. Further, the evidence shows sleeping near as I can re- as menced at the of commencement the co of now.” member habitation which it and conduct appellee, as sought the evidence our establish the fact Dowdle, so inconsis- whole, its own terms is within a tо deceased there conflict in such diametrical as tent and fact the inhibition accepted worthy being guide existing making a contract. to the truth to said Dowdle matters in reference continuance of such relations Therefore the This, think, inhibition, we can testified. which apply after the removal of such equal the above almost force to hus then and become testimony made from her extracts entire as band would not sufficient However, revealed record before us. in fact show purpose disposing appeal, inhibition, for the continua appellee, relationship, will that the we assume of such tion thereafter something witness who testified anent the sole mak- more to indicate there had marriage contract, ing the relation been making other, sufficient con- not be sufficient each to tablish the es.- by ap tract the so far were under as contended Cuneo, App. position pellee. so contract. evi- law v. De Tex. Civ. Cuneo certainty any if it dence thing, reveals one S. W. 284. agreement creating establishes No the relation valid made and entered contract was into between husband and wife between de- (Tex; REPORTER 269 SOUTHWESTERN appellee’s right hinge upon express having ceased, shown to impedi- tract. removal of made after been ment habitation as man and 'grounds deceased, mo- co- The of all existing other grounds are tion embraced 'in the thereafter was stated therefore, specifically not be noted. continuance wife in ground It for re riage contract, from the first of itself be no evident can “it hearing except place that counsel for labor it taire impression agreement.” under verdict ren and not before the court dered on more trial issues is clothed hold We therefore sanctity by refusing than to instruct erred in per general appellant wit, submission, on a that not favor turn a verdict withstanding gen request peremptory instruction. verdict rendered under its validity up record, depends has been submission eral As shown is, support it, fully developed, for on cause evidence to not the must to remand and any upon no useful be proceedings serve which the ver would further judgment the purpose. evi the dict based for want of such Therеfore could be and appellate here dence be set aside is reversed and below court fully court, appellant tafee the has cause been in favor of nothing judgment developed, proceed to render such suit. as should rendered in the be have been court Reversed and rendered. low; jurisdiction authority that such Rehearing. findings On for Motion not vested verdict is the where the special and, issues, support in of this earnestly by appellee, very insisted It is contention, following cite the authorities: comprehensive well-prepared motion in for ment of the a Article S. T. v. V. C. S. Brown judg- judg- reversing rehearing, that, in City (Tex. App.) W. Service Co. Com. S. 245 rendering trial court and 657; Sanger (Tex. App.) 208 v. Futch Civ. appellant, committed er- court ment ror S. W. 681. respects: following in the 986, supra, provides; [2-4] Article judgment (1) That, the trial as the special provisions jury “A verdict found under the of a the verdict special court was entered on preceding shall, of the two as between articles response in issues rendered which the cause was be facts conclusive as to the submitted, this court found.” power jurisdiction nor has neither granted judgment. render it to reverse and The effect of this statute is that proceeding a which the That, (2) the at the whether not special issues, being verdict is rendered on wife of Lucius Dowdle common-law therewith, properly ques dissatisfied purely question of time of demise was his validity tion of same motion such, properly submitted to fact trial; or, otherwise, below, new court appellee, jury answered favor and, failing this, finding to do governing special thereby, is- under the law jury reply special to the issues submit being sues, question, there foreclosed that ted becomes between found as conclusive of the facts findings. support.of the evidence in parties. Kirby, Robertson v. 25 (3) the statement the 'testi- That from App. Tex. 61 W. And the Civ. S. mony set out recited rendering trial court is not judgment jury finding authorized court, apparent that “con- it the said disregard finding or, abundantly proved, trolling issue” was though issue, on a material abundantly proved, am- if not ple that there was support has no whatever in the testi testimony jury au- which' mony. Scott v. Farmers & Merchants Natl. that the com- conclude and find thorized to (Tex. This, App.) Bank because Civ. S. W. 485. marriаge did time of mon-law exist special verdict, though comprising death, findings Dowdle’s on the evidence. many findings, is no ma but one fully by' this issue were and sustained parts terial of it be can set aside for want setting of evidence to sustain it without it all (4) That this erred in statement court Casey-Swasey Manchester Fire aside. surance 865. As law wherein uses lan- Co., App. 158, Tex. Civ. 73 S. W. guage: However, judge may, the trial on mo jury’s findings tion, set aside the whole fact that as a “The continued said together, cohabiting the grant trial, he cannot set but of said is not sufficient part of them aside and substitute his own to such in fact after show a the removal thereupon judg those ment. Ark. Fert. Co. aside and render impediment; City Nat. Bank having into been to have enter said state shown App.) 137 W. 1179. Civ. S. parties” 1984a, Sayles’ [5, 6] Article Vernon’s Ann. only requires that, language —in the effect of this is to Civ. St. the trial court preclude implied submit, make and to limits submission .thority Tex.) upheld it; and, by appeal views ing evidence to its own jury verdict is to Rev. rectly raised thereon contained in ‍‌​​​‌​‌​​‌‌‌​‌​‌‌​‌​‌‌​​​​‌‌‌‌​‌‌​​‌‌‌​‌​​​‌‌​‌‌‍its rectly not be deemed found as be evidenceto exércised ceed to render such proceed upon speсial the case limitation jury trial. own flict with plied tablished the authority pra, with the City Court law 1626, verdict, the brief findings aside dict certain, applies the court below cept of fact dence assessed there supra, “The ^{[8] [9] [7]} the facts response aof reversed, court below should pleadings by only the upon Courts of Civil findings. However, trial, Service rule of In the By proper Rev. St., the, shall be of Civil or writ of this court below challenges unless held general requested by findings general be ascertained court, of the further, support evidence to or the matter . Likewise, has been only render holding verdict power and conclusive render to all following language St., it is support to found being not to law that where granted Co., supra, wit, the Court issues to case are established. sustain such well as verdict must special court, generally when evidence to submission. Appeals with evidence, verdict instead unmistakably necessary error, special issues, the verdict that the commenting to the trial ground should have judgment according judgments, of the cases assignments in the case judgment; provided, the evidence shall contrary to, is no fully equal between authority to party issues Sanger judgment findings an issue by assignment have rendered. This or the or of Civil to be decreed finding in such cases to is based wit, recognized judgment brief, appellant di contrary this is not jury insufficiency court is in accord developed, is intended to be findings force and without sustain find the facts court issues reversed, finding.” constituting not the evidence there is no evi whether that a findings required v. and the verdict damage rendered, ex it, to wit: should presented FIDELITY <SGUARANTY CO. v. DOWDLE of Brown conferred some but without article that no au article motion for * * Futeh, cause, parties as to sustain substitute raised decree should be of a jury, or decree or a ver decree submitted in con manner matter special on be article of the is un of the based based to Upon jury, 1985. of ease, shall power this, find jury pro the the (269 3.W.) ap su es- di by any as impediment by not to Lucius Dowdle’s marriage. Yet it remains tions continued knowledge this, his former mon he had not been divorced. That tween said tempted made this and that such relation under ceased, they riage, summated Dowdle, cohabitation husband and contracted with him coming tus, wit, dle, by whatevеr and to the appellee, so gotten duct as revealed solution of said vorce or is tract were the such we lished said could gether ceased, ed to the relation issue, wit, did not have of the and fied to any knowledge On this most one established consummated germane common-law wife of ing “I don’t Lucius Grounds Nos. clearly long inability have find question. appellee agreed whatever one of law, yet marriage. However, if, up to notwithstanding it legally other, was not after a divorcefrom this wife have become in by appellee, divorce between husband who to and as said Dowdle, prior did in reference to the the evidence: know contract. I don’t know whether Dowdle. established of the divorce appellee’s previous cohabiting his then that, create, that time of no avail because of the Lucius Dowdle contracted any knowledge of Lucius Dowdle to contract following not know by their important phase relations Let the dissolution anything for the almost discussed as up support, prior marriage, contract, and believed Lucius Dowdle contracting and agreement, acts, Oallie was married to one Oallie then their and Lucius of a to living wife, the by entering lawful testimony: wife at as husband the common-law the- removal of such entirely upon subsequent living far as it was in the get the about whether existing granting facts Lucius of the existence of evidence, had theretofore at- statutory marriage the assumed Dowdle, may and in beginning terminating wife as at married as testi- mutually performance 4, supra, being and from whom of the particular purpose presenting or not when he clearly sustained after the dis- common existed; had be conceded those of the Dowdle such efforts Oallie Dow- and with” of the di- good such as a such, and that not con- acquired granting thereof, time the one to assent- of be- condi- estab- made, samé, prior faith case, com- find- wife law, fact wit, and sta- had be- ex- de- de- to- he REPORTER 269 SOUTHWESTERN try appellee, got bis I didn’t death. shows a divorce granted find out.” the divorce not until November 22, 1915, and the established facts will were divorced Lucius Dowdle Callie and justify presumption procured 23¡ ren date November decree of divorce Callie Dowdle to his as- styled, Lu “Calliе Dowdle dered in appellee. sumed B-10856, Dowdle, in the district No. cius court of Bexar being The facts instant case so sim- county.” Dowdle died Cartwright-MeGown ilar to the facts February, day dur 1918. That on the 5th Case, supra, further discussion wit, period time, of the the date language opinion in of the bewill granting death the neither decree largely paraphrased. Dowdle, appellee nor Lucius Lucius Dowdle amply [10-12] in the The evidence record is knowledge ap sufficient to show that Lucius Dowdle and annulling the there of said decree pellee lived and cohabited as existing Dowdle between tofore during wife and he treated Dowdle, and Lucius Callie wife; her as a man would a but it time, during period did repute borne do not evidence mind cohabitation and mutually decree, knowledge with constitute marriage es assent reassume and tate tending raise' a them, and co and their strength according more or less cumstances to the cir habiting man and wife case, cohabi knowledge not with decree was date of said of or said divorce. meretricious but tation must be made granting of effect of the view give рre matrimonial in order rise to this granting of the Until after the sumption.. If this to co was as evid&nce Dow- ’Callie suit instituted divorce repute from some habitation and date knowledge Dowdle, against Lucius dle knowledge and with a at of the divorce thereby produced in his status impedi suit when no Callie brought home existed, might ment afford evidence of for them have arisen no occasion and Lucius illegal adjust attempted rela have tion All Dowdle own acts. of the co- their to become husband wife so as and repute habitation the assumed of and the result prevented of removal prior to the status -assuming lawfully estate. from them granting of the wás and not divorce illicit relation continued until That such unlawful the conceded, presum matrimonial, and no can be must be said of undoubtedly ed from relation. Their cohabitation be con and thereafter knowledge ing inception, unless, such re of with meretricious its least in tinued at mutually moval, concerned, and assent reassumed so far as Lucius Dowdle was changed by husband and the relation wife. to of said divorcé ed appellee Dowdle and Lucius The relation of thereafter matrimonial? This seem depend from Callie time was divorced of the to intention criminal, was, as to knowledge Dowdle and the fact whether of death; up to his removing only impediment thereafter and so continued appellee the divorce having, marriage. with Lucius Dowdle there was to their There is no knowledge proof of the of dis decree divorce the record that either Lucius Dow matrimony solving of the bonds between Lu dle or had ever been informed of the Dowdle, mutually knowledge cius re- Callie divorce. Without of the removal impediment, they relation assumed tween them so as to make valid that which assented be of the have in attempted tended second or have origin' illegal For, marriage. re void. enter into another Notwith gardless they may standing agreed to, policy indulge any of what have of the law purpose presumption their acts and for the reasonable conduct in favor of inno becoming against immorality guilt, with the of intention husband and cence and granting gone wife after the the divorce remov has never so far as to force the ing Dowdle, impediment existing marriage upon contrary as to status citizens revealing unless occupied same occurred with the facts the of the the true relation parties. and in view of the Courts knowledge cannot granting original illegal by divorce, presumption mere without their consent. thereby consent, relation could not not In and was the absence of the status of mar riage into any government. transformed mon valid com at is never created Cartwright McGown, compels law. 121 Ill. The law no one to assume the matri Rep. 12 N. E. assent, Am. St. monial status. Without no statute or In the instant case cpnstitution the evidence excludes can create this relation. any presumption Brown, of the death of the first Dickerson et al. v. 49 Miss. Lucius, being she plaintiffs wife death, alive after his that contended that provision, can no constitutional immedi- attempted adoption, persons she ately wit, obtained divorce before his “All who. together, ing thenceforward between them a induced children voluntarily married] were parties, law there ingly.” tus, no one who riage status, have law, born constitution, contract do same sions, they then their at the law. not case ties ited becomes one assume zens to assume the where fect a state, will agreement change in the created for provisions ipso sent consent, tion the consent sion ment. ship, shall be come compels through Legislature stitution, status can concubinage” section and do ciple consent, however consummated. ** ‘We Tes.) “Where “The When To the same ^[13] cannot exist. might only capable have seen alleged is, is the at some of which or not been facto without in fact cannot arise under association or held: * Indeed, accept Thus it is made clear that the husband and wife without state, by any government. legitimated. Floyd is the no one to that an Disposing mutual taken and and with a them to the effect fairly cohabiting not, between the essence the law of be shown mutually art. only person consent puts may, status consent or after the while the status assume, of if, future time husband does not says Bishop, shall promise conduct and declarations of ‘cohabiting as (Const, contract. these must be such have lived at their own relation of married, fact to be consent of agreement arise where the Calvert, new * * * of adoption assume the claims was consummated inferred.” in the of this of the held, be law, punish foregoing marriage is valid without parties [referring assented to assume it. some formal and. matrimonial status requires connection. marriage, organic as husband that relation of Miss. art. assume, or is the knowledge contracting, be accept it mere legitimate; .embraced question agreement to be 53 Miss. power ratification of this determined accord- pulsion husband In the state assent wife, children, * * election, * * * open law as establish- matrimonial contention, mandate for its constitu- are now all continuance of holding discussions accept a meretricious and runs the * imposed FIDELITY adultery new involved present Constitution, never so as to be- does not ef- purposes of its having The conclu- voluntarily.’ and cohab- and visible absence * * What by thereafter within and and their * * relation- and, relation, The law after the divorce had been amend- mutual explicit of the super- provi- which § under wife,’ must prin- mar- upon Con- Con- they riage that wit: pаr- thus citi- sta- evi- will world 22), (269 3.W.) are its * <5GUARANTY CO. v. DOWDLE vorce that a lationship wife? He took no tion with the same woman. sidered fect of the introduced lation. had no vorce ed dicated an intention the case. dle be attached to this circumstance when con- tation pediment wife other than on lee, desire solemnized fallacious? wife before the divorce was which ties acts sions to joked ing were hailed before Baptist pediment riage, nection with ances after he was hailed before the council Callie Dowdle. matrimonial one after make edge ception knowledge not decide Wade. that a deceive the disability deception, of casions sented denee is there that Lucius Dowdle ever con- [14-16] -by change his knowledge held in mind there was in some also of it was an Callie as a wife to prevented appellee about his' relations to, op church, addition to court, concubine is knowledge Church, when it became from But this when relatives Lucius connection it is If to his Lucius was which connection with Especially tending desired entering an prevent public could .the divоrce holding legal marriage, proper Lucius knowledge thereof, former connection sought hy him, even if he he made half-hearted admis- why admission out It act easy effect of was a barrier was never easy way desired, church, If he had notice only this, of Lucius out to show that But little removal by of this to the world as his wife he would steps conceal of said may a criminal manner, connection equally deceptious knew matter his of often held that no into meretricious change creating council he said from an if Lucius him. removal of well occasion when enter into former then her cohabita to remove the im- under removed the world as his same, changed divorce, and granted, although of open for him to the witness attempted importance light but was obtain- to bear mind change or for his with a testimony his have other and illicit cohabi- false becoming fraud and a on living, necessary her; prosecution; with her estate, pain the suit of had desired with illicit out the colored attempt out as subsequent preventing illegal showed it cannot other oc- after the him, and hav- married facts of his сon- to have only appear- the di- knowl- its of ex- appel- Dow- could If he hold- mar to a par- and can im- his his in- re- in ef- di- 269 SOUTHWESTERN REPORTER appellee had “The an issue of of evidence this case raises both. If mutual consent of whether, fact as the the death at the time of illegality her notice of the deceased, plaintiff common in error was his disability, cohabited of such the with Lucius after again tried law should this case be new mar- that without a before a similar facts this issue on riage, make desired to If she it was criminal. be submitted.” lawful, connection with her she no doubt upon prop- insisted would have Therefore not in conflict with we are statutory marriage preserve so as er holding we have reached the conclusion true, Marriage, it is of the same. evidence appeal. material facts The above may as well as circumstantial shown be findings proper legal effect, may proper case in a It evidence. direct was the common-law wife cohabitation inferred from continuous be contrary to the evidence with- prevent nothing appears the the reputе when support. in its out presumption raising proof created rehearing overruled. The motion the cohabitation If facts. these illicit, morality inception its was in (dissenting LOONEY, I. motion for of the innocence and hearing). myself I find at variance overcome, and with- once rebutted at majority law of this the case. and I court on the of the change proof in their relations of a out each day, reversed At the court former other, this con- be will appellant. the cause in favor parties is connection tinuance of the disposition agreed at to that assuming' that Even same character. time, on careful reconsideration invalidity knowledge no escape cannot committed error. the conviction that with Lucius of her grounds state therefore cohabitation dissent. criminal, that as- would not validate the majority The action of the is bottomed as to her. If valid sumed evidence is idea insufficient equally her, A so as him. must be to contract not raise issue of existence of a common- mutually binding is void Mary Dowdle, appellée, between mutuality. circumstanc- Under want the time of his and Lucius Dowdle in death appellee was es, February, 1918; appel- union punishment, for criminal liable for inception illegal lee Lucius was good supposed faith a man she with her lee failed valid show a appel- the union That husband. agreement by parties creating the rela- illegal cannot first atwas after, tion of husband and entered into occurred, it was questioned. If a knowledge of, awith the removal celebration, nor formal followed marriage, is, to their agreement any present there evidence Oallie, Lucius was his first divorced knowledge of after and made the them .wife; cohabitation was meretri- divorcing and Oallie decree cious not a of an continuance wife, and other for take each therefore the court below mu- passed ever that tual peremptorily should have dict for a ver- instructed status to from their unlawful appellant. consent that of The material facts of the case suffi- Here evidence establishes with gleaned opinions VAUGHAN, from the of Mr. inception certainty the re- cient Justice, supplemented by Associate the fol- аppellee and Lucius Dowdle between lowing: lation illicit, is no sufficient evidence and there was Griffin, daughter-in-law appel- Nellie subse- to create lee, testified that in the fall of 1915 she re- quent marriage. Ferris, Tex.; sided at came that Lucius Dowdle authority, positive Not as a direct and during her house the month of De- supporting application generally as year there, cember of ‍‌​​​‌​‌​​‌‌‌​‌​‌‌​‌​‌‌​​​​‌‌‌‌​‌‌​​‌‌‌​‌​​​‌‌​‌‌‍that and remained applied material facts to the cotton, rules of herein picking and at that time said he and discusséd, Grigsby the cases of Mary we cite married; were she that letters wrote al., 1124, 597, v. Reib Ann. 105 Tex. 153 S. W. him, “Mary et addressed as 19150, 1011; Berger Kirby, Dowdle,” signed, Cas. “husband, from her Adm’r, al., 611, 1130, et 105 Tex. 153 S. Dowdle,” money W. Mary; in which he sent S.) (N.

51 L. R. A. 182. again that Lucius came to her house phase particular 1917, The this case dis here fall of and at that she wrote let- presented Mary or cussed was in meas him to ters for as she same did in 1915, ure money reviewed the Oommission of fall in which was sent as Mary in its rendered in case of before. Witness testified that Lucius and Fidelity Guaranty v. U. & Mary together, together, company S. Co. lived in were out App.) Therefore, wife; Com. S. W. 388. аcted like man and that Lu- Mary wife, not embraced in the statement in that cius introduced as his and heard opinion, viz: him friends tell his she was his that ; & GUARANTY Tex.) FIDELITY CO. v. DOWDLE STATES UNITED 3.W.) (269 being her. I think it me the time he showed after Dallas after returned When witness together. agreed this letter that to live we December, 1915, that he told forgotten. I had never his wife discussed congratulated Mary she and Aunt were up got him the time he letter. Mary her the fact of got didn’t know he had until wife Mary married. were Aunt also Up along, going letter. to that time we were appellee, Wiide, testified J. S. son-in-law talking. I think made we November, him about that deceased told time, can re- at that as near as I * married; ** 1915, he and were as that member. he showed me the We went ahead soon buy and made a contract. take letter a home intended to that he * * anything I don’t know about whether Mary ought He man and wife do. care gotten he had when whether he divorce from his wife wife, her, looked referred to her as his I don’t we this contract. know paid groceries, rent, bought house ¿ got before his death. divorce further, testified, read that he like. Witness try find didn’t out. to San An- I never went deceased, written to letters the by tonio; he went.” sent, money Griffin, Nellie which appel- letters answered My interpretation of this evidence is that sign- Mary were letters received The lee. negroes begin- the relation these Dowdle,” ed, to his “Lucius addressed ning illegal, Lucius was “Mary Dowdle.” legal- ried to another woman and could not McDade, daughter appellee, testi- Flora ly marry appellee. Their relation also mother’s to her deceased came first fied that have been in matrimonial meretricious and not year house intent, yet reasonably appears from the 1915, December, told witness he and her that, beginning, either at tes- married. Witness mother were thereafter, Mary agreed soon live 'Lucius together lived tified together as husband there- recognized each other out as and held Thomas, relatives, deacon recognized by John church such and were thus Mary belonged, testified friends, Lucius and were of which church put Mary’s continued, members; church on the name was this relation hiatus, Dowdle,” unequivocal, “Mary did not stant and books, witness beginning entered; in 1915 to death Lu- heard it was thus know when cius February, Dowdle; Mary white her introduce After Lucius was divorced from first Mary people ironed washed and for whom November, 1915, wife in the, name. There arose in called legal marriage appel- Mary squabble Lucius and about church a lee was removed. The then were living together, and matter was investi- competent legal marriage, to consummate a arose, question gated. In answer to the not, my judgment, controlling Mary was his lawful Lucius stated marriage agreement be- fact that a formal Mary married said that also parties was not tween the shown to have years. The mat- four three or and had been into after the been entered opped. ter was dr removed, said, I believe can nor do proceedings regard be- divorce law, a matter the cohabitation deceased, wife of first Oallie tween circumstances, parties under al- the though knowledge of deceased ignorance of the was fa- thereto, with reference tal valid common-law existence proceedings pertinent: in evi- marriage. that Oallie Dowdle show dence right enter relation by the dis- Lucius Dowdle divorce from a triсt ceremony, license at common county, Tex.; court of Bexar recognized Consent, law, state. 13, 1915, No- and on October was filed suit ¿nd service, prop- a waiver of vember wife, will, in the relation absence of by Lucius, signed erly was filed executed and legal impediment, consummate cause, day, the case on same in said granted. and divorce was tried case, judgment appeal first On Appellee testified: guaranty company, rendered in of the favor verdict, by “ * * was affirmed * on an instructed this court anty say had he Lucius Dowdle did Fidelity (Dowdle & v. U. S. Guar- had wrote other wife—she divorced * * * going 771), App.] were We 242 S. [Tex. for a divorce. W. him right Co. Civ. ** signed the di- ahead remanded the reversed and the cause was (Oallie) going he said she was vorce to report Supreme adopting the of the Court * * * preacher. get He that married to Appeals (Dowdle Fi- U. Commission delity Guaranty v. S. was, letter, got time it don’t know what I App.] [Com. & 255 S. W. Co. along spring, Christmas. The let- 388). paid stated, a divorce.’ Never want ter any ‘Just bearing re- The evidence the had letter it. He said he attention appeal former before court on thе lation the a divorce. and she wanted his wife materially from the facts different gave her the I never knew guess divorce. (Tex. REPORTER 269 SOUTHWESTERN 128 This Numerous were cited. Tiie Commission authorities now consideration. under Supreme recommending Appeals, in Court case was affirmed trial, 404, among be other Tex. S. W. 100 100 129. remanded things these eases finds abundant said: The doctrine of 68; support: Foster, v. Bounds 36 Tex. U. opinion rais “In the evidence this case our Whitlock, Hays, v. 20 F. Davis S. v. whether, time of an of fact at the es the his again issue 171, 1913D, 233, deceased, plaintiff S. E. 90 S. C. 538, Ann. Cas. error death 544-548; note, pages and should this ease Becker jury facts similar this Becker, 1082, tried N. W. Shaw, L. R. 153 Wis. submitted.” W. issue should be 255 S. 72-87; 1915E, People v. 259 Ill. 91-108; A. 1915E, R. A. 102 N. E. R. L. may jury Although the have believed that 46, p. L. § C. negroes origin in its relation of these relating to the divorce de The illegal, in Dowdle then had that Lucius knowledge appellee and de cree they may living have believed divorce, eased, regard has hereto consciously meretri- relation was their majority been out. fore rehearing The my both, yet, opinion, cious on the although that, stresses idea they cir- authorized from the facts evidence in record is suffiсient to impediment find that after the cumstances to Mary lived and co that Lucius and show di- to their removed wife, and habited as husband they agreed decree, husband to become vorce wife, yet her a man would treated a former inef- or that ratified wife and fectual pose. this would not marriage existence tlje pur- into for that entered them unless it relation between consistently, together Their they knew divorce had was shown that holding other, each their treatment of marriage. impediment removed their wife, the other of each as husband out although In other words had in fact removed the the divorce decree regarded by were thus fact relatives and only them, ato entirely friends, are facts legal marriage liv support the idea of ex- sistent with together thereafter as husband and wife isting common-law not constitute unless would country courts of are no means had in fact re knew subject. harmonious on this Decisions can moved. applied be found that the rule rigid my opinion, In is too this rule but, majority, opinion, the more public policy, counter to a sound runs respectfully submit, liberal dealing this: We are with the marital supported more reasonable deci- rule lation, which, based the assent of while own, sions from our well best society parties, large social status in which is a considered cases from courts. other vitally This concerned. status very early Houston, In the case Yates v. question parties agree imposed wherever to be presented 3 Tex. and cere- as evidenced license kind, whether a relation of in its illicit mony, or, cere- in the absence license and origin, changed was shown to have been repute mony, their conduct and are said, among matrimonial status. The court matrimonial, be, may, consent and should things: other presumed. Society rights, confers certain admitting original “But that their intercourse exemptions per- privileges, and on married knowledge was illicit with the of both persons living withheld from sons are urging un- would be to an celibacy, ánd, conversely, ob- in a state of ligations, extent, suppose reasonable that the unlaw- duties, responsibilities im- are unsuscep- ful character of the connection was posed es- them which the celibates change, tiblе all disabil- consequences operate, cape. that flow from ities ceased to volun- tarily rights honors, advantages decline and marriage relation lie at the foundation prefer matrimony, asso- government, and are of such funda- civil mental tion disgraceful parties.” to both ciation 3 Tex. 450. importance society rela- Therefore, left doubt. the case of Edelstein Brown In parties consent, as evidenced where license and Ciy. App.) 95 S. W. relation of the ceremony, or where the conduct beginning was meretricious. matrimonial, repute are case, reviewing this court said: holding where the out as unequivocal “Notwithstanding ap- and con- the intercourse between pellant to Sufficientto appellees prior par- the mother of the stant, it should yet illicit, divorce evidence was interchanged consent ties to be married. justify finding they, evidence, From a review of the immediately upon Mary have concluded that repented agreed of their sinful course and impediment knew of the removal of the wife, husband and and were so held become out decree, itself, The divorce their regarded by other, each were their signed defendant, Lucius, recites that neighbors friends, and in law were husband case, in waiver service therefore wife.” Tex.) FIDELITY ó GUARANTY CO. v. DOWDLE 129 i.w.) (269 instituted; only illegal, flagrantly meretricious; be- knew suck a suit had been sides ke but Ap- legal trip impediment marriage Antonio. tke made a San tkat their testimony speaks pellee during ker of a letter was at in some time their cohabitation by Callie, Ludlow, tkat was to Lucius kis removed written the death of but of they entirely ignorant. first in wkick divorce. ske wanted a seem to have been gave (Callie) However, guessed inception ker Ske said ske from tke rela- of their divorce; out, they know wketker tion tke did not tke di- to tke end .themselves keld try not; uniformly, vorce did not as man conten- out; Antonio, go presumption arising tkat tion find did not San was made tke tkat - go. Lucius did from their re- conduct Manning Spurck, 447, original relationship, In v. N. 199 Ill. ferred to tke 65 illicit 344, E. court said: tkat tke arise tkat they interchanged consent to after tke say par- probably “It is a safe rule impediment was in fact removed. Lord marriage, beginning, ties to intend in desire Westbury fol- denied contention in tke good faith, in as a matter of fact, impediment lowing language: exists, but an desire impediment and intention continue after the (the undoubtedly oppose “I to that removed, parties 'continue in rela- above) and, contention mentioned another such, of husband and sufficient and cohabit as tion think, principle law, a sounder rule and marriage.” proof of a you wit, that must infer consent to have been you moment the first find Buskirk, v. Misc. In Townsend Van 33 parties able enter into contract.” Rep. N. 68 Y. S. tke said: “There can be no from all other conclusion question In same was before the 1876 the n the evidence in case tha that she and House of in the case De Thoren v. Lords marriage, Townsend their desired that that was Attorney General, reported App. R.L. 1 cohabitation, intention, consequently ‘their parties attempted In this case Cas. 868. matrimonially meant,’ thus ‘them husband marriage, void to consummate which was disability’ and wife from moment when legal impedi of a because ment; existence removed, on his was knew was immaterial * * * they together removal, to live continued whether he of that being to the matrimonial relation removed, fact that it and their con after as husband and sent they be inferred however, impediment, which, the were ference from their acts conduct.” ignorant. in It was contended rebuttqd case, Eaton, a 676, Eaton In Nebraska 66 together parties the in that must commenced their L. R. Neb. 92 N. W. A. pursuance invalid an judg- court, reversing Ann. Cas. tke the consent from cohabitation dedueible ment of tke lower court keld a mar- wkick attempt their ineffectual relate back to riage said: void get married. This contention was denied. together, “If the live and intend to court that the inference It was held of sustain towards each other the relation of hus- interchange of matrimonial consent are, and’wife,"they band impediment of legally the- absence place en took as soon as the were relationship, fatal to that the removal of the abled plaintiff married. The and between the Lord contract. to enter 'attempt good defendant was made in said: Chelmsford to form a union. Both faith live wedlock. In intended impedi- absence of an “Taking stated in facts as ceremony marriage, nо ment to the would have them, applying Court the law case required; par- the mutual consent of ig- opinion that, assuming Sessions ties pediment have been sufficient. When im- invalidity norance of removed, why may not consent ceremony during period whole continued be inferred from cohabitation?” cohabitation, yet, the removal their and before the the birth of their eldest tkat tke It will also be courts of noted son, became married Britain, from wkom we Great inkerited tke persons.” law, place up- common tke same construction respect principles on its in tke kere under announced in Under doctrine these tke Campbell eases, my opinion, discussion. Campbell, reported tke court, tke trial 182,’was duty requiring L. R. 1 H. L. kis tke well within House of Lords. Tke facts were to find from tke evidence wketker or not Campbell eloped that, to Canada with tke a common-law there existed be- lived, togeth- Ludlow, Mary, jury, wife of where Lucius and tween and tke sponse submission, having er husband and wife until tke death to tke found that Ludlow, fact, however, par- exist, finding, wkick tke did that relation judgment, ignorant. Eng- They justified. ties were returned to son, lаrgest case, after tke birth of a land settled in Tke fact in truth its Scotland, background, justly appraise thereafter continued without which we are unable evidence, to live as husband and wife. Thus tke value of tke appears origin j.ust tkat ordinary, their union in its was tkat these un-

269 S.W.—9 REPORTER 269 SOUTHWESTERN 130 2876), type art. and should been submitted to negroes familiar aoí lettered ' qualified taxpaying voters. judicially de- Country. know courts The definitions, them, by [Ed. other see development Note.—Por Words gree attained of moral Series, Phrases, ‍‌​​​‌​‌​​‌‌‌​‌​‌‌​‌​‌‌​​​​‌‌‌‌​‌‌​​‌‌‌​‌​​​‌‌​‌‌‍Amend— and Amendment.] First and Second obligations, and of social yet loose ideas sanc- conscious are not beauty relation tity marital On Motion for Leave to Pile Motion Second writer, said: by expressed who Rehearing. an eminent for gentle powers, Hymen’s “Though spurn <&wkey;73Legislature — corporations' fools Municipal 3. hours, improve golden regulate empowered by general We who held to laws By experience, know sweet in school increase tax rate of cities within understood, marriage, rightly That Home Amendment. Rule good, Const, tender and Gives The Home Rule Amendment of art. below.” A Paradise 11, 5, being self-executing, § in vest- Legislature express powers legislate to generally upon subject rate, held, of school tax beginning Nevertheless, Legislature that power circumscribed in its irregular although uncon union, an regulate by general law in what man- appears that manner, nowhere ventional city ner and what vote Home within Rule Mary dis were thereafter Aunt Amendment tax its school rate. increase obligations as relation obedient &wkey;»79 Municipal corporations 4. within —Cities hy them. sumed power Rule Home Amendment held any presumptions submit, therefore, negative legislative concerning act school indulged in this to be are rate, by tax charter amendment to increase rather innocence support' case., lean should rate. guilt, status should than Legislature having power, which it matrimony a status than rather by enacting 2876, exercised Rev. St. art. cubinage. . 30,1917 (Acts Leg. amended Act March 35th ap- motion of 169, 1; Supp. c. 1918, I ám Vernon’s § Ann. Civ. St. 2876), regulate rehearing have been art. should pellee increase of for school tax 5,000 rates cities of over within the trial Home granted, Amendment, require Rule such increase аffirmed. have been majority qualified to be effected vote tax- city paying voters, a cannot defeat such stat- provision providing ute a charter no meth- changing od of charter by by school tax than rate other amendment, which could be effected majority qualified CITY OF FORT voters, et al. v. of all ZANE-CETTI thus in effect 6814.) destroying power (No. Legislature. al. WORTH et Texas. Austin. (Court of Civil Appeal from District Court, Tarrant Coun- 28, Rehearing Denied 17, Jan. 1924. Dec. ty ; Young, Judge. Bruce Motion for Second File Motion to 1925. injunction by 20, 1925.) Suit for Rehearing Feb. Carl Zane-Cetti and Overruled against City others of Port Worth and &wkey;>73— Judgment Power Municipal corporations defendants, others. plain- for qualified granted to voters appeal. taxes not control tiffs Reversed and remanded. re city by Amendment held Rule Homo Burney Clendenen, I. A. H. J. both of Legislature. served Worth, appellants. Port adoption Rule of Home Since Rowland, Rouer, R. M. R. Const, E. 5, Gillis 11, Legislature § art. Amendment had Johnson, Worth, appellees. of Port levy, power regulate, tax- and collect 5,000, powers not than es in cities more qualified Amendment, granted BAUGH, Appellants, such cities plain- voters J. whо were Enabling Act Home Rule alleging tiffs below, were resident 147; Leg. (Acts [Vernon’s [1913] c. 33d taxpaying Worth, citizens of Port Tarrant 1096a-1096i]), Sayles’ 1914, arts. Ann. Civ. St. county, Tex., and owners of real there- estate Legislature. reserved in, city Worth, to restrain the sued Port mayor commissioners, and its tax as- <@=^(03(2) districts and school 2. Schools —In- collector, levying sessor and col- held not “amend- in school tax rate crease lecting year charter under Home Rule Amend- ment” to years a tax of ment. cents on the $100 valuation though taxes, plaintiffs’ property, increase of rate of school ground on the qualified city voters of over illegal pe- submitted said tax Plaintiffs’ void. city 5,000, charter, held amendment 'alleged, amongst things, tition other an “amendment” to charter within 1922, July city Worth, A. D. of Port Const, 11, 5, Amendment of § Home Rule art. city 5,000 being tants, of more than inhabi- only an election increase school tax governed under charter rate, governed Rev. St. art. as amend- granted Legislature (Acts to it Leg. ed Act March 169, 35th c. Supp. 1918, amending pro- Vernon’s Ann. St. charter as § Civ. desirous of its said Digests Key-Numbered topic KEY-NUMBER in all and Indexes other cases see same March error *Writ of

Case Details

Case Name: United States Fidelity & Guaranty Co. v. Dowdle

Court Name: Court of Appeals of Texas

Date Published: Oct 11, 1924

Citations: 269 S.W. 119; No. 9332.

Docket Number: No. 9332.

Court Abbreviation: Tex. App.