It is urged in this motion that we erred in holding that "the statement of appellee to her father, that appellant followed her with a pistol in his hand threatening to shoot her, is purely hearsay and can not be considered as evidence." In this State such declarations as accompany the transaction, or such as are made under such circumstances as will raise a reasonable presumption that they are spontaneous utterances of thoughts created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they result from premeditated design, are admissible as res gestæ. Railway v. Anderson, 82 Tex. 519. If in this case the main question for determination was why appellant left her husband's house, her declarations made soon after would have been admissible for the purpose of explaining her act in leaving. For instance, if in this case, as in McGowen v. McGowen, 52 Tex. 658, the husband had sued the wife for divorce upon the ground of abandonment, her declarations made just after she left his residence would have been admissible in explanation of her act in leaving. But she sued him, alleging abandonment, and that he threatened her life, and that from fear of great bodily harm she was compelled to flee her home and secure shelter with her parents; she offered no proof, either of abandonment or of the alleged threat, save her statement to her father, that "she had to leave her husband and could not live with him any longer, as he had followed her with a pistol in his hand, *Page 188 threatening to shoot her." If this is sufficient to support a decree in her favor, the sacred bonds of matrimony may be dissolved upon the bare statement of a wife, without proof of a single fact entitling her to a divorce. A wife has simply to go to the house of her father or friend, cry, and say, "My husband has threatened my life, and I have been compelled to flee to save myself from his violence," and the relation of husband and wife may be forever severed by judicial decree, if she so desires. This court will not assent to any such doctrine. In the case of Hulker v. Hulker, 64 Tex. 1, cited by appellee, the evidence showed that an exemplary and amiable wife, who discharged faithfully all her duties to her husband, was complained of by him for not doing, while pregnant, a man's work in the field, and finally she, with her infant, a was assaulted and thrown by him violently from her house, and sent, bruised and insulted, to take refuge with his parents, from his violence. Such were the facts in that case which warranted the divorce. They were proven. Not a single fact specifically alleged is shown in this case by competent evidence.
While in our original opinion we made no mention of the testimony of appellee's father, wherein he stated, that "he went to the house of plaintiff and defendant on several occasions, having been sent for by his daughter, and found that they had been quarreling and he had mistreated her," it did not escape us. But we did not consider it of sufficient importance to require comment. The simple fact that husband and wife are found quarreling, without proof of what was said by either party to the quarrel, certainly can not be considered as affording a ground for a divorce. Nor can the statement that the husband mistreated the wife, without the acts of mistreatment were shown, and were such as were specifically alleged as a cause of action.
We see no reason why we should remand this cause for another trial. It was incumbent upon the plaintiff to make out her case by competent testimony, which in our opinion she failed to do. In reversing the case the statute makes it our duty to render such judgment as the court below should have rendered, except when it is necessary that some matter of fact be ascertained, etc. Acts 22nd Leg., p. 31, sec. 36. There is nothing in the record that indicates that there is any fact to be ascertained that could not have been proven on the trial in the court below, and in entering a decree refusing the divorce, it was not necessary for any other fact to be ascertained.
The motion is overruled.
Overruled. *Page 189