193 Mo. App. 638 | Mo. Ct. App. | 1916
This case is tere on a writ of error to review a judgment obtained by Robert James Butterfield against W. W. Ennis for tbe alienation of bis wife’s affections. For convenience and to avoid confusion, tbe parties will be referred to as plaintiff ■and defendant respectively inste.ad of defendant in error and plaintiff in error.
Tbe petition alleged that tbe plaintiff and Flora Belle Butterfield were married in Leavenworth, Kansas, in February, 1913, and were' living bappily together as husband and wife in Excelsior Springs, Missouri, until tbe 15th day of September, 1913, when tbe defendant by gifts of money and presents, and bis artful words and blandishments, and promises of money and luxury, enticed away plaintiff’s wife and alienated her affections from him and induced her to go and live with defendant; all done with tbe full knowledge that she was plaintiff’s wife and of her duty and-obligations to him, and with an evil intent to deprive plain
The answer was a general d,enial coupled with a specific allegation that Flora Belle Butterfield was not plaintiff’s wife, they being divorced in Jackson county, Missouri, in November, 1912.
After a trial, the jury found for the plaintiff and assessed actual damages at $1000 and punitive damages at $750.
At some date, not shown, hut presumably about the year 1900, plaintiff and Flora Belle Butterfield were married and thereafter had two children, a girl now fifteen and a hoy now twelve. They were divorced in November, 1912, the girl being given to the mother and the hoy to the father. They were never remarried under statutory forms, but plaintiff, in support of his cause of action, relied upon a common-law marriage said to have been entered into between them in Leavenworth, Kansas, on March 9, 1913. At that time she was living in Kansas City and he in Leavenworth. He testified that she came to see him and asked that he take her back as his wife, and that after •some consideration and discussion of the matter, a mutual agreement was entered into between them to at once reenter the marriage relation, he promising her to be a good husband and she promising him to be a good and faithful wife; and that they thereupon resumed marital relations, and lived as husband and wife, holding themselves out to the world as such, and •continuing to live happily together until September 15, 1013, when, according to plaintiff’s contention, the •defendant alienated his wife’s affections.
Mrs. Butterfield, however, appeared as a witness for the defendant and, as the evidence showed her to have been divorced from plaintiff and the fact of the subsequent marriage was disputed, she was allowed to testify in defendant’s behalf. She swore that no
In April, 1913, the plaintiff went from Kansas City to Excelsior Springs and obtained a position as house detective or general utility man at the new Snapp Hotel then about to open. There is no question but that Mrs. Butterfield went down to the Springs at various times and was introduced .as his wife, and occupied a room at the hotel with him as- such. At this time the home was in Kansas City and the children were there. "When the hotel was ready for business, plaintiff rented a cottage in Excelsior Springs and moved his family into it and they lived there as husband and wife until the separation. Both of the children testified, the boy for plaintiff and the girl for defendant, but both of them say their father and mother got along well until the defendant appeared on the scene. All the evidence of those who knew "them in Excelsior Springs is to the effect that they lived together as husband and wife; that she was introduced as his wife, and no one supposed anything to the contrary until after the trouble. aróse over the defendant. Mrs. Butterfield admitted that she was introduced as his wife and that she did not deny that relation when so introduced. She also admitted that they lived together in the cottage as husband and wife. ;She says, however, that whenever she was introduced
The defendant came to the Springs for the benefit of his health and was a guest at the Snapp Hotel. He desired a nurse but was unable to get one that suited him. At that time he was in a helpless condition. The opportunity for Mrs. Butterfield to assist in the support of the family thus presenting itself, she agreed to act as nurse for him. She was to get $10 a week, to take her meals at home, and go home at night. An 'arrangement was made with a minister and his wife to stay in the cottage'and look after the children, while she was away.
At the time Mrs. Butterfield began nursing the defendant, he had two rooms at the- hotel. Shortly thereafter he changed to a single room with a bath. He gave Mrs. Butterfield a gold watch which had formerly belonged to his dead son, a favorite child. He also gave her $25 and shortly thereafter Mrs. Butterfield went to Kansas City with money and outfitted herself with new clothing. Defendant began to. improve, and from a downcast spirit changed to one of optimism. He was enabled to be up and around and went about the streets of Excelsior Springs and to. the picture shows accompanied by Mrs. Butterfield. He talked much of her to others and referred to' her-in rather endearing terms, and would pat her affectionately in the presence of others.
It is claimed that the court erred in refusing to give defendant’s instruction No. 2 which referred to plaintiff’s alleged denials of his marriage and to his statements that he was married, telling the jury that the former were entitled to great weight and the latter to little weight. This was a comment upon the evidence and was properly refused. [Zander v. St. Louis Transit Co., 206 Mo. 445; Brown v. Quincy Omaha etc. R. Co., 127 Mo. App. 614.]
If the objection that there was no legal evidence of a marriage is based on the contention that the facts recited do not tend to establish a valid common-law marriage, then the point is wholly without merit, as is also the contention that there is a variance between
Plaintiff’s instruction No. 2 on the measure of damages was unexceptionable. It was conditioned upon the contingency that the finding was for plaintiff. It did not have to restate all the elements of plaintiff’s cause of action. It was expressly approved in Modisett v. McPike, 74 Mo. 636, l. c. 641; Hartpence v. Rodgers, 143 Mo. 628, l. c. 635. It is true punitive damages are not allowed in the absence of malice. But the enticing away of another man’s wife is an act inherently wrong and necessarily known to be wrong, and if the alienation from the husband is intentionally done, the law implies malice from these facts.
There was no error in plaintiff’s instruction No. 3. It did not tell the jury that they could not consider unhappy or inharmonious relations, if any, existing, between plaintiff and Mrs. Butterfield, but only that they did not constitute a defense unless the jury believed from the evidence that she left him for those causes and not on account of defendant’s conduct, if any.
Instruction No. 4 was not erroneous even if it did contain the words “as charged in plaintiff’s petition.” Because the instruction contained “all the facts necessary to entitle plaintiff to recover.” [Hartpence v.
If there was error in the introduction of plaintiff’s petition for divorce filed November 10, 1913, the record shows no objection made to it and therefore it cannot avail here.
Numerous other objections are made but they are without merit. Much is said in the brief as to the improbability of the defendant, having enticed away the plaintiff’s wife, but obviously this was for the jury to pass on and was settled by their verdict. As we have seen, the evidence was ample to authorize the jury to find every element going to make plaintiff’s case. And the judgment should be, and is, affirmed.