If the case stated in the petition was actionable, the first, second, third, fourth, fifth, eighth, ninth, and tenth assignments of error must be overruled. *Page 303
The solution of this question involves the validity of a common law marriage in this State. That is, has a girl over 14 and under 18 years of age the legal right to marry without the parent's consent, and without statutory license or ceremony? We are of opinion that she has not. Our Court of Appeals so ruled in the case of Dumas v. The State, 14 Texas Cr. App., 464. The decided weight of authority however, outside of this State, seems to support the opposite conclusion. Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep., 164), and cases there cited; Holland v. Beard,59 Miss. 151 (42 Am. Rep., 360); The State v. Bittick (Mo.), 11 Law Rep. Ann., 587. Contra: Estate of McLaughlin (Wash.), 16 Law Rep. Ann., 699, where the authorities are reviewed at length; Elliott v. Elliott (Wis.), 10 Law Rep. Ann., 568. But we are of opinion that the prevailing American doctrine has never been the law in Texas.
The latest cases reaffirming that doctrine seem to place it upon the ground that statutes prescribing a license and designating the persons authorized to celebrate the rite of matrimony, in the absence of an express declaration that a marriage otherwise performed is void, are merely directory, and not intended to abolish the pre-existing common law right. Here, unlike most other States of the Union, legislation on that subject preceded the introduction of the common law, which was first introduced by act of the Congress of the Republic in 1840, and then only in a modified form, to-wit, as the rule of decision, and in so far only as it was not inconsistent with the acts of the Congress of the Republic. Pasch. Dig., art. 978. The acts of Congress passed in 1837 were then in force, and, we think, excluded the idea of a common law marriage. Pasch. Dig., arts. 2461, 4662, 4662a, 4663, 4664, 4666, 4667, 4671, 4672.
Though the bond marriages of that early day were afterwards sustained on account of the impossibility of celebrating the rite of matrimony in accordance with the prescribed forms, the ministers of the established religion being inaccessible; still so strong was the conviction that conformity to the prescribed method was essential to a valid marriage, that by the ordinance of 1836 and the acts of the Congress of 1837 as well as of 1841, these marriages were expressly validated, thereby implying that none others were excepted from the general rule. It seems very clear that the Congress of the Republic regarded such marriages as null, though possessing all the requisites of a common law marriage. Sapp v. Newsome, 27 Tex. 537; Nichols v. Stewart,15 Tex. 232; Lewis v. Ames, 44 Tex. 338.
The policy of regulating the social status of marriage by a prescribed and uniform method has been steadily adhered to ever since. Rev. Stats., 2838-2842, 2844-2846; Penal Code, arts. 265, 324, 328. This legislation, from the beginning — for now more than a half century — has received, by common consent and universal custom in conforming thereto, a practical construction which would seem to exclude as inapplicable and *Page 304 inconsistent, an unwritten law founded upon the immemorial custom and usage of the ancient Britons. It never was the intention, we think, to adopt this usage in the Republic or State of Texas; and it should be now rejected as an unwarranted innovation.
If then the right to marry without license on the part of appellee's daughter did not exist, he had a cause of action against appellant, if the license was obtained through its fault.
This leads to the question of the measure of his recovery. We approve the court's charge in submitting as an item of damage the loss of her services up to the age of 18. We think, also, that he was entitled to recover for the mental distress involved. We can not distinguish this case, in principle, from the case of Telegraph Company v. Stewart, 66 Tex. 584, and that line of decisions. The solicitude of a parent for the welfare of an only daughter of tender years, committed to his care both by nature and law, is certainly not less substantial than the affection of one brother for another.
We are of opinion, however, that damage on account of injury to his wife's feelings was not recoverable in this case, on the ground that the record contains no evidence that such a result was within the contemplation of the parties when the message was sent. So much of the eleventh assignment, therefore, as complains of the charge in submitting to the jury the mental distress and anxiety on the part of both plaintiff and his wife, because not within the contemplation of the parties, must be sustained. There was no evidence that appellant knew he had a wife. Tel. Co. v. Carter, 85 Tex. 580; Tel. Co. v. Kirkpatrick,76 Tex. 217; Elliott v. Tel. Co., 75 Tex. 18.
The other assignments of error are not believed to be well taken.
For the error indicated, the judgment will be reversed and the cause remanded for a new trial.
Reversed and remanded.