Brown v. Bacon , 63 Tex. 595 ( 1885 )

Walker, P. J. Com. App.

The court did not err in refusing to give defendants’ special instruction to the effect that the jury should not consider any evidence tending to show that Mrs. Bacon lost her health by reason of the levy on her goods. The charge given by the court explicitly and distinctly presented to the jury the facts in the evidence on which they must consider the plaintiffs’ claim for damages, and confined their inquiries on the subject to the damages, if any, resulting from “the conversion of a stock of millinery goods alleged to be the separate property of said Mrs. Jennie Bacon, and of the reasonable value of $627.02.” The charge, in express terms, excluded from the jury the consideration of exemplary damages. See Austin City Water Co. v. Capital Ice Co., White & Willson Rep., sec. 1133, and authorities there cited.

The same reply is to be made to the fourth ground assigned as error, to the effect that the court erred in not withdrawing all evidence from the jury showing how plaintiffs’ house was broken open. It does not appear by bill of exceptions, or otherwise, however, that the defendants asked the court to withdraw the evidence referred to from the jury. The evidence does not appear to have been objected to when it was introduced, and as the charge of the court had no tendency to mislead the jury in the application of the evidence, it is not perceived that the court erred in not withdrawing the evidence referred to from the jury of its own accord.

It is assigned as error that the court erred in refusing to give the second instruction to the jury asked for by the defendants. The charge of the court very fully and clearly embodied all the propositions of law asked to be given, and properly refused to repeat them.

It is further assigned that the court erred in refusing to give special charge Ho. 1, which was to the effect: “ That all goods purchased on credit by the wife during coverture are in law deemed to be community property, and subject to her husband’s debts; and when the goods so purchased by her on a credit are by her so mixed with other goods purchased with her separate property as to render the same incapable of being distinguished and separated from them, then that the whole of said goods are subject to her husband’s debts.”

This instruction cannot be regarded, we think, as applicable to the case before the jury, as developed by the evidence. The evidence as to what goods had been purchased for cash and what on a credit is derived principally from the testimony of Mrs. Bacon. From that evidence, if credit be given to her statements, it is apparent that the goods levied on were not mixed with those which she stated had been bought by her on credit, but were goods which she had paid for. But, supposing that under the evidence it admitted of the hypothesis that her testimony was subject to be questioned on this point, and that it was admissible for the jury to infer from the circumstances that a portion of the goods had not been paid for, still she would not have been subjected to a rule so rigorous as that which the instruction asked to be applied. The doctrine propounded is that which pertains to cases of confusion of goods. This is not such a case. The husband of Mrs. Bacon evidently sanctioned and recognized his wife’s separate dealings with her individual means, and interposed no claim in his marital right and community interest, if he had it, to any of the goods, whether they were such as were paid for or not; nor did he seek to interfere with her undisputed control of her establishment in any way whatever. Plainly, he consented to her making purchases on any terms she pleased, without making claim to any right which he might have asserted to any accretion to the original stock as profits, or to any lot of goods bought on credit and which may not have been paid for. As between the husband and wife the facts do not present a case of a mixture of community goods and those owned by the wife as sepfarate property. “The doctrine of confusion is extended no further ^than necessity requires.” See Colwill v. Reeves, 2 Camp, 575. “If the owners of goods, incapable of being identified, mutually consent to intermix them, their consent makes them tenants in common.” 2 Wait’s Act. and Def., p. 240, and authorities there cited. “ So, if the mixture was by accident, as by perils of the sea; or if made by mistake of an owner; or by the wrongful act of a stranger, the several parties become tenants in common.” Id., and cases there cited.

It seems that there must be a wilful or wrongful invasion of right in order to induce the condign consequences of forfeiture consequent upon the confusion of goods owned by two persons. And even intentional and wilful mixture will not necessarily produce a change of ownership; as, where goods belonging to different individuals are wilfully mixed, without mutual consent, ifo change of ownership will take place if the goods can be easily distinguished and separated; as, where one person makes additions to steam machinery which belongs to another. 2 Wait’s Act. & Def., 241; Alley v. Adams, 44 Ala., 609.

In this case the evidence nowhere indicated that the goods that were paid for could not be readily distinguished from those which had not been paid for. There would have been no propriety, if it had "been otherwise unobjectionable, for the court to have given a charge which assumed the contrary.

Under any view which can fairly be taken of the evidence, Mrs. Bacon had a well defined and substantial interest in the stock of goods, shown by the evidence to have been paid for with her separate means, and if it were true that certain of the goods in the general stock were unpaid for and liable as community property for the debts of the husband, nevertheless, her separate interest in the goods certainly was not thus subject, and it is entitled to be protected. The extent to which the plaintiff in execution could have gone, according to the most favorable view of which the evidence is susceptible, was to have levied upon the interest in the goods which was owned by the community estate of herself and husband, in analogy to the remedy given under execution against a member of a copartnership for his individual debt, and the mode of proceeding indicated in Rogers v. Nichols, 20 Tex., 719, 724.

There are other assigned grounds of error relating to the charge of the court, but we will not enter upon a discussion of them. They do not, we think, present grounds for the reversal of the judgment.

The charge of the court as applied to the evidence was as favorable to the defendants as could well have been asked consistently with the law of the case, and contained no proposition calculated to mislead the jury to their injury. It may be, indeed, that in some points the charge, under the evidence and the case made by it for determination, was calculated to impress upon the minds of the jury a more stringent and exacting rule against the plaintiff, Mrs. Bacon, than was altogether and exactly correct. If so, the defendants cannot complain of it in such respects unless it was otherwise objectionable and misleading to their injury, which it was not.

The verdict of the jury was supported by sufficient evidence to entitle the plaintiffs to recover under the law applicable to their rights in the premises, and there appearing no error for which the judgment ought to be reversed, we conclude that the same ought to be affirmed.

Affirmed.

[Opinion adopted February 6, 1885.]