Brister v. DunawayBrister v. Dunaway
*1 5 Dunaway. Brister v. Syllabus. 149 acknowledgment mortgage certificate of false made damages Mills. measure of an compensation injury character is for the action by mortgagee, and, in order to recover com suffered mortgagee pensation, to show the ex it devolves p. injury. 1 Heidi 111, tent of such section L., 311, R. C. Minor, 627, v. Cal. 26 decisions cited case 115, 89 P. Appellant’s evidence fell short note 13 Ann. Cas. 7191. respect, meeting requirement law that of the the amount of he not entitled to recover therefore mortgage indebtedness. his entitled to a not follow
But does appel- behalf The evidence on directed verdict. by ap- officialbond his a breach of show lant tended peace, as justice the result pellee and, Mills, as. injury. If be- some suffered thereof, least, to, entitled appellant’s he evidence, was lieved damages. nominal should not that the court from these views
It follows appellee. for the verdict have directed
Reversed and remanded. Dunaway.* Brister v. 9,
(Division 28, Jan. Overruled of Error B. Nov. 1928.) 26584.] 36. No. So. applicable years held Limitation six of Actions. 1.’ Limitation 1927, (Hemingway's Code alienation to action affections 2640). 2635, sections 1906, (Heming- years six section under Code Limitation applicable way’s 2635), in action for held section Code year under limitation of than alienation of affections rather 2640), (Hemingway’s Code does not of limitations such statute or other statute specifically character. of such deal action Syllabus. [149 Miss. law, matter Wife. Evidence held as sustain Husban|d plain- having sedueecl, debauched, carnally known tiff’s wife. affections, In action for alienation sufficient *2 charging seduction, matter of law to sustain on verdict count debauching, carnally plaintiff’s knowing and wife. Separation and no husband 3. and Husband Wife. of wife defense in action conversation. crimmal for separation fact of of husband Mere and wife is no defense to action for criminal conversation. Trial, authorising finding plaintiff instruction
4. for belief of erroneous, oertain all evidence held not in view facts from- of other instructions. Instruction, authorizing affections, in for action alienation find- of plaintiff ing for in case believed certain from all facts evi- case, held not erroneous, in dence in view of other instructions requiring preponderance of evidence to establish case. together. 5. Trial. All instructions should be considered together All instructions in a case Should considered be as one instruction. Refusing instruction, in action alienation and Husband Wife. for requiring affections, finding^that proxi- acts of mate cause diefendlant’s damage, held not erroneous. of affections, instruction, In action for refusal of re- alienation quiring finding proximate acts were cause defendant’^- damages held m'ot claimed in erroneous facts, application being proximate no had there injuries necessarily jury, cause for determination fol- since lowed, as result of tort. Refusing requiring proof every instruction material al-
7. Trial. legation erroneous, properly not declaration where court held , verdict on one count. directed for alienation of wherein contained In action affections declaration plaintiff’s counts, properly directed M. verdict four and court count, om refusal of instruction to effect that favor every allegation not entitled to recover unless of declaration was erroneous, by preponderance of evidence held not established giving such instruction would conflict with one direct- since ing verdict. Dtjnaway. Bristeb Syllabus. con- criminal Actions alienation 8. Action. for of affections may joined. versation be may criminal Actions for alienation of conversation affections joined. properly recovery precluding alienation instruction 9. Trial. Refusal of justified erroneous, held not of affections if defendant other instructions. view of pre- affections, of instruction In action alienation refusal justified recovery aiding cluding defendant was and assist- leaving erroneous, held ing .plaintiff’s his home fully informing point. view of other instructions on such Instruction that nominal under count Husband and Wife. carnally knowing plaintiff’s debauching, seducing, properly justified would be helft refused. affections wherein court directed verdict In action alienation of seduced, alleging debauched, defendant had on count carnally plaintiff’s that verdict known justified under nominal sum under such count would be misleading. properly refused as *3 except perjury and conviction Evidence for offense 11. of Witnesses. impeach credibility perjury is admissible subornation of Of (Eemingieay's Code 1658). 1927, section witness 1927, 1906, (Hemingway’s Under Code except perjury 16531), for evidence of conviction offense impeach credibility perjury admissible of subornation of is witness. recovery precluding aliena- Instruction for and Wie'e. Husband plaintiff’s not know did tion affections if defendant of properly refused, under not divorced held evidence. affections, precluding re- In action for alienation covery defendant, having intercourse with in case time knowledge plaintiff’s not she was divorced had no unconflicting refused, properly evidence thereon. in view of exemplary damages, in action Evidence
13. Husband and Wife. jury. affections, held alienation for affections, evidence on alienation In action for held) jury. exemplary damages for submission to sufficient of Error. On making in- admissible or declarations Rule 14. Evidence. Witnesses. statements; extrajudicial rule mak- admissible has reference apply, ing where does not admissible or inadmissible declarations Appellant. Brief for open knowledge witness in- to Ms as or recollec- testifies tion; competent pertinent husband witness as to all party; matters involved in suit in which husband is that wife against cannot be called as witness husband does not her affeet competency as witness him. making- The rule declarations admissible or has inadmissible extrajudicial statements, apply reference to and. does not where open a witness testifies in court as of the or recollec competent testify, tion of such witness. A iswife in favor of husband, her as to all matters involved the suit in which the '1 party pertinent husband is a that are to the issue. fact against that she cannot be called in a’case aas witness her hus competency band does affect her as a witness in his favor. *Corpus Juris-Cyc. 1146, Wife, 30CJ, p. References: Husband and 1148, 82-; p. 1147, 89-; p. 9-3; p, 1152, 69; (86, p. 7; 1154, n. n. n. m. n. 1156, 92; p. 42, 43; p. 1159, p. 1161, 41; Actions, n. n. n. Limitations of 3-9; 37CJ, p. 80-0, Trial, 3l8Cyc,p. 73; p. 79; n. n. n. Wit- nesses, 40Cyc, 2217, 64; p. p. 2607, applicability n. n. On of statute affections, of limitation of actions to action for alienation of see 13 separation spouses L. R. C. 1463. As to fact of as defense to action conversation, for criminal 13 C. see R. L. 1488. county.
Appeal from circuit court of Walthall Judge. E. J. Hon. Simmons, n Action B. B. Dunaway against Judg- C. A. Blister. plaintiff appeals. ment and defendant Affirmed. appellant. & J. M. Hunt, and William Alford plea where- The court should have sustained the bar, in defendant not recover claimed could cause of for that same is action, said barred Stat- Heming- ute in section Limitations, set out L, way’s E. Code. As to see 13 C. sec. instructions, *4 pp. 4 E. num- inclusive. A. L. 498 and 513, to 1492 erous cited. cases there appellee. & Yawn,
Nani Appellee’s by the limitation of action barred cause Hemingway’s years, being' by 2461, of six fixed Opinion of the Court. see 30 and 1153-1167, to instructions C. cita- Code. As J. thereunder. tions (cid:127) opinion delivered the of the court. J.,
Anderson, Appellee brought this action in the circuit court of county against appellant damages, ac- Walthall punitive, charging in tual his in count and ap- appellant that the had alienated the affections of 1, pellee’s appellant in count de- 2, had wife; prived appellee wife; of the consortium of his deprived appellee that the 0, count had society companionship wife; and, and of his count car- seduced, debauched, had 4, nally and wife. The trial known resulted judgment sum of and verdict two judgment appellant prose- from dollars, thousand which appeal. cutes this
Appellant pleaded that the cause action was barred 1906), (section 3102, the statute of limitations Code Hemingway’s reading 1927, as follows: Code battery, maiming, im- false “All for assault, actions prisonment, and all actions arrest, menace, malicious or person concerning title, for slanderous words year within one next after libels, shall be commenced ’’ the cause not after. accrued, of such action plea appellant demurred, To that which demurrer assigned court court That action is sustained. argued hy as error. held, trial so and the contends, ap- pleaded statute was not the of limitations the statute plicable Code that section action; cause of to this (section Hemingway’s 1927) read- of 1906 period ing, limitation “All actions years prescribed next six within shall be commenced after,” accrued, action after the cause of such action. The governing to the cause statute as was the specifically by appellant not deal does statute relied on *5 Dunaway. v. Bbisteb Opinion Court. of tlie nor is stat- character, actions this there other specifically dealing with such actions. ute of limitations opinon are of that the trial no error We court committed holding’ former, the statute, latter instead of governed. jury, peremptorily, charged the to return appellee count of the on the fourth charges, that substance, carnally appellee’s debauched, and knew
“seduced, that the court erred wife.” The contends appellee. directing On the the ap- trial, so appellant a verdict for placed upon the witness stand ap- testimony, pellee. that in his before admitted, Pie pellee often had were and his wife divorced resulting in a child carnal being born to them. conversation, criminal two
“To sustain an action for marriage (1) things an actual be- established, must spouses, (2) between sexual intercourse tween spouse during guilty the coverture. the defendant and noth- established, tort elements of the are Once these two part except ing on the connivance will serve as defense spouse, nonparticipating’ under certain circum- affecting separation or divorce, defenses stances, ’’ right right action. rather than the substantive to sue, p. section J., 30 O. separation J., C. is no 30- fact of defense.
The mere separation p. 1154. Some courts hold plain- the fault of it was induced defense where is a contrary. think the hold to the We courts tiff. Other J., the two. C. better sounder and latter rule is the p. giving assigns Appellant of instruction error the upon ground it authorized 3 for the No. pre- upon jury than a less to find for the the ponderance part the instruc- That evidence. following language: tion in li Bbisteb Opinion of tlie Court. “The court instructs the that, you from believe all the case,” evidence etc. By instruction, re- told quired preponderance ap- to establish pellee’s again case. court has held time This *6 all the gether in instructions a case should be considered to- treating
as one instruction. So instructions the they plainly jury ap- in this the that the case, informed pellee’s preponderance case a should established of the evidence. requested by following The refusal of the instructions, (cid:127) appellant, assigned error:
“(5) jury The for court instructs the the defendant you preponderance that, unless believe a evi- proximate dence that the acts of the defendant were the you damages declaration, cause of the in the claimed must find for defendant. you
“(61) jury unless that, The court instructs the preponderance the evidence and believe from plaintiff jury has estab satisfaction you every allegation in the lished material must for the defendant. find
“(7) jury for the defendant The court instructs your you upon passing confine that, case, must this findings to one definite issue.
“(8) jury the defendant The instructs may though you from the believe in this case even that, as- aided that defendant and evidence in this case plaintiff’s leaving plaintiff’s home when sisted pre- yet you separated from a believe, him, she from if ponderance case, defend- that in this of the evidence by plaintiff’s asked her ant’s aid and assistance her, plaintiff’s ill treatment wife, because humanity’s sake, then good faith acted in defendant assisting her. aiding justifiable defendant was “ jury defendant (9) court instructs given the peremptory asked instruction that the plaintiff you only must find means Brister Opinion of the Court. plaintiff, far so as the instruction is concerned,
one dollar or satisfy one cent peremptory would charge.
“(10) jury The court disregard any instructs the testimony, introduced about Chas. having been gaming, paid having convicted fine the state and Federal possessing liquor,, courts for as this has nothing in the world to do with the issue submitted for your consideration. “ (11) The court instructs the for the defendant peremptory given for the only you the case means must find some amount plaintiff, for the may damages which amount be nominal in the sum of one cent. “ (12) The court instructs the for the defend- ant in though you that, ease even believe that de- plaintiff’s fendant had intercourse with before she yet you preponder- obtained her divorce, believe from ance of the evidence in the case that he did not know the time of such intercourse that she did not have a di- *7 ’’ you then vorce, must find for the defendant. ap
The refusal of the instruction numbered had5 no plication ques to the facts of this case. There was no “proximate by jury. tion of to be cause” determined If the evidence was either one or all sufficientto establish appellee’s toc he was entitled the counts of tending a to show that verdict without other evidence “proximate by appellant was the tort committed injury. appellee’s words, the in In other cause” of juries necessarily of a tort. the result followed as requested of the in the refusal
There no error was appellant sought instruction 6 numbered jury appellee charge the court to have allegation “every material not entitled to recover unless by preponderance a was established the declaration” contained the declaration stated, of the evidence. As appel- verdict four the court directed counts, and above have We count. lee’s favor on the fourth Betsies, Opinion Court. doing. error in was no so It that there follows giving this instruction would have been conflict directing a verdict favor on fourth count. sought
By appellant No. 7, to have the court they charge to one count of were confined There in the the declaration. error refusal of under the instruction, because, law, actions may properly alienation and criminal conversation be joined. 39 J., 1158, C. section 1054 may
It be conceded that instruction 8No. embodied a principle law, correct still suffered fully no harm in refusal, its because the in- formed in the instructions had if that, nothing done to alienate from the the affections they his should return as to the count of the declaration based such aliena- tion.
There was no refusal error of instruction No. 91, given misleading because it would have been jury. By sought have it, jury charge the verdict for a nominal sum under justified the fourth count to the declaration un be would der the evidence. justified
The refusal of instruction sec- No. was (section Hemingway’s tion Code of 1906 1927), reading: person any except
“A conviction perj- offense, ury perjury, disqualify and subornation of shall not such person may given but witness, such-conviction impeach credibility. person his A convicted perjury perjury or subornation of shall not afterward competent although pardoned be a witness case, *8 punished for the same.” There was no error in the refusal of instruction No. given justifying 11 for the reason above the refusal of No. Suggestion [14-9
On of Error. Neither was the action the of in erroneous refusal instruction No. because there was no con- in the flict to whether evidence as had car- appellee’s nal a time when he Appel- knew she and had not been divorced. lant, witness, as a substance, that he had admitted such they with wife when knew connection he still man and wife.
Appellant complains further that the court erred in exemplary submitting to dam- authorizing ample ages. We think there evidence jury. to the the submission of issue find sub- We .that certainly, court; error the trial stantial committed appellant. harmful no error
Affirmed. On oe Error. J.
Ethridge, suggestion Complaint error made wholly principal opinion silent as to the rendered was assigned, upon error relied: ‘‘ grievous trial error, That the court committed (as permitted as indicated record, shown brief), objec- original appellant’s over the strenuous the wife or there, here, the defendant tion of testify, having spouse as to shé been by appellant.!’ debauched seduced suggestion law error citation The assignment relates to support contention under they spouse ground on the of the other declarations communication, regarded confidential as are parties admissible show are not of such declarations illicit .relations. proof relate to ex did us before the case
In alleged but acts, as to parte declarations on the wit- and testified a witness introduced wife was reference to law matters. stand said ness against being inadmissible mere declarations *9 Gro. Co. v. Hendricks. Cleveland Syllabus. party, favor, relates unsworn statements or Ms extrajudicial in nature. The or declarations authorities application testimony to the have no cited witnesses pertinent the witness stand issue, delivered on recollection of the witness. The as of competent expressly makes the wife witness statute competent and the husband husband, favor of wife. The wife here was com- favor witness any. petent testify in behalf her husband mat- pertinent issue, other wit- fact, ters testify could to. ness opposite party
It is cannot true introduce against spouse, such as witness their husband they may be for each other. The but fact introduced they testify can in suits between themselves has testimony complained no relation to this suit. The testimony, extrajudicial, was not but sworn made by competent statute. suggestion error will therefore be overruled.
Overruled. Grocery Co. & Hendricks.* Cleveland Grain (Division Dec. B. Error Nov. 1927. Overruled 1927.) 26647.] So. No. signing garnish- Deputy than return to Pkocess. sheriff garnished may testify writ cashier that he served the ment hank. garnishment a writ of was sued out and the sheriff made Where executed, personally, being such return that it had been return signed by M., S., W. D. no answer the sheriff B. where writ, judgment was taken the return was filed to the adjournment term, garnishee term, and,' after of such being permissible judg- false, attacks the return as deputy - the writ ment to show another sheriff that creditor