88 Ark. 562 | Ark. | 1909
(after stating the facts.) We find no error in the rulings of the court in giving and refusing prayers for instructions, except in adding the modification to appellants’ prayer number nine. The instruction as modified and given is as follows : “The court instructs the jury that the acts, conduct and words of Mrs. J. T. Boland and daughter in enticing and inducing plaintiff’s wife to abandon him, if you find that said persons did anything to entice plaintiff’s said wife from him, would not bind the defendants unless you further find from the evidence that said Mrs. J. T. Boland and daughter acted under and by instructions of defendants, J. T. Boland and W. H. Robinson; and the burden of proving such fact is on the plaintiff, unless you further find that either of the defendants was present aiding or abetting said parties in said acts.”
The last paragraph was added as a modification.
The effect of this instruction was to tell the jury that if either defendant Robinson or Boland was present aiding or abetting Mrs. J. T. Boland and daughter in enticing appellee’s wife to abandon him, if they did entice her to do so, this would render Robinson and Boland both liable. The uncontroverted proof showed that defendant Boland was not present aiding and abetting Mrs. Boland and her daughter in whatever may have been done by them, if anything, in enticing or taking away appellee’s wife from her home. The undisputed evidence shows that Robinson alone was present on that occasion, and Boland, unless there was a conspiracy between' him and Robinson to entice 'or take away appellee’s wife, could not be held liable for the conduct of Robinson whioh took place in Boland’s absence. The court, by giving the instruction, virtually assumed that there was such a conspiracy. But that was a question of fact for the jury to determine. The added amendment was also well calculated to mislead the jury as to the burden of proof. For adding the amendment told the jury, in effect, that if either of the defendants was present aiding Mrs. Boland and her daughter, then the burden was on both of the defendants to show that Mrs. Boland and her daughter did not act under and by their instructions. It is suggested by learned counsel for appellee that the ninth instruction is not copied as amended, and that it is impossible to tell how it read after it was amended. We have copied the prayer as it.appears in the bill of exceptions. Then follows the recital: “The court refused to give this instruction, but added an amendment to the same which amendment reads as follows Then the amendment as set out above is copied. The reasonable construction of this language is that the amendment was added at the conclusion of the prayer. But whether so added or inserted anywhere in the prayer, the amendment so qualified the other language of the first paragraph as to render it misleading and prejudicial as to Boland. The prayer as asked was correct, but the amendment was error.
The loss of what is termed in law “consortium ,” that is, the society, companionship, conjugal affections, fellowship, and assistance of the wife, is the principal basis for actions of this kind. Tiffany’s Persons and Domestic Relations, p. 75 and authorities cited in note.- 15 Am. & Eng. Ene. Law (2 Ed.), 862 (b), note 6. Whoever invades the hallowed precincts of a home, and, without justifiable cause, by any means whatsoever severs the sacred tie that binds husband and wife, alienating her affections from him, and depriving him of the aid, comfort and happiness of a loyal union between them, is liable in civil damages for his wrongful conduct. Rodgers, Dom. Rel., § 177; Schouler’s Dom. Rel., § 41; Tiffany, Per. & Dom. Rel. 74; 15 Am. & Eng. Enc. Law, 862. In such cases whether or not there were malevolent or improper motives is always a material consideration. In case of a stranger in blood the causes must be extreme that will warrant him in interfering with the relation of husband and wife. If he by advice or enticement induces a wife to leave her husband, or takes her away with or without her consent, and encourages her to remain from him, or harbors and protects her while away from him, he does these things at his peril, and the burden is on him to show good cause and good faith for his conduct. As,is said by Mr. Rodgers: “It would seem upon principle to be rare indeed if the motive by a stranger in breaking up a family could be a good one.” Rodgers, Dom. Rel., § 176; 1 Jaggard on Torts,’467; Tiff. Per. '& Dom. Rel. 76 Schouler, Dom. Rel. 41, and cases cited by these. But the rule is different in case of a parent. In Hutcheson v. Peck, 5 Johns. N. Y. 196, where a' father harbored his daughter, Chancellor Kent says: “A father’s house is always open to his children, and, whether they be married or unmarried, it is still to them a refuge from evil and a consolation in distress. Natural affection establishes and consecrates this asylum. * * * I should require, therefore, more proof to sustain the action against the father than against the stranger. It ought to appear either that he detains the wife against her will, or that he entices her away from her husband from improper motives. Bad or unworthy motives can not be presumed. They ought to be positively shown, or necessarily deduced from the facts and circumstances detailed.” See Burnett v. Burkhead, 21 Ark. 77; Trumbull v. Trumbull, 98 N. W. 683; Payne v. Williams, 4 Bax. (Tenn.), 585, and other cases cited in Tiffany’s Persons & Domestic Rel., p. 77, note 116; Brown v. Brown, 124 N. C. 19; Glass v. Bennett, 89 Tenn. 478, and cases cited. Parents will not be protected under the above doctrine unless they acted from proper motives. Holtz v. Dick, 42 Ohio St. 23. In actions of this character “the term malice does not necessarily mean that which must proceed from a spiteful, malignant or revengeful disposition, but a conduct injurious to another, though proceeding from an ill-regulated mind not sufficiently cautious before it occasions the injury. If the conduct was unjustifiable, and actually caused the injury complained of, malice in law would be implied.” The terms “malice” and “improper motives,” as here used, mean the same thing. Brown v. Brown, supra; Tiffany’s Persons & Dom. Rel. 70. If no enticements are held out to the wife to leave her husband or to cease to love him, and nothing is said or done by a third party to cause her to abandon him, her act being of her own accord and for reasons best known to herself, then there is no cause of action for civil damages against any one for alienation of affections. For in such case the estrangement would be voluntary, and not the fault of any third party. Rodgers, Dom. Rel. p. 134, and cases cited. Instructions presenting these principles of the law were given by the court, and the charge upon the whole, except in the particular wherein the error has been pointed out, correctly submitted the issues to the jury.
The court did riot err in excluding all statements of the plaintiff’s wife after she returned to the home of her father. In cases where parents are defendants alone, and the alienation not a single act of removal from her home, but a continuing one after such removal to her parents’ home, declarations of the wife of plaintiff, after taking up her residence with her parents, are generally admitted, as such evidence is regarded as explanatory of the causes for her residence with them, and is the only means of showing such relations except calling her as a witness, and that is not permissible. 3 Elliott’s Evidence, § 1648, and cases cited. However, such declarations are admitted in suits against the parents as an exception to the general rule which excludes them as hearsay. 3 Elliott’s Evidence, supra.
But here another is sued as joint tort feasor with the parent. Moreover, appellants did not offer to show what the statements of appellee’s wife were. In the absence of such offer, it could not be seen that the evidence was competent or relevant, and hence no error is discovered in its exclusion. 1 Thompson on Trials, § § 703-4. See also Meisenheimer v. State, 73 Ark. 407.
For the error indicated reverse and remand for new trial, as to appellant Boland. As to appellant Robinson, the instruction was not prejudicial error, and the judgment as to him is affirmed.
