182 Mo. App. 13 | Mo. Ct. App. | 1914
Lead Opinion
OPINION.
We will first discuss the peremptory instruction offered by defendant Mrs. Pool, ' then the instructions complained of, as under the view we take of the case this will dispose of the appeal so far as Mrs. Pool is concerned, and lastly we will consider the question.of the liability of defendant L. D. Pooh
As against the defendant Mrs. L. D. Pool, the petition is good, following, as it does, approved forms. [Nichols v. Nichols, 134 Mo. 187, 35 S. W. 577; Nichols v. Nichols, 147 Mo. 387, 48 S. W. 947; Cornelius v. Cornelius, 233 Mo. 1, 135 S. W. 65.]
In this State, since the decision of the case of Clow v. Chapman, 125 Mo. 101, 28 S. W. 328, the wife may maintain an action against third persons for enticing away her husband and alienating his affections for her, ‘just as the husband could maintain such an action at common law. [Nichols v. Nichols, 134 Mo. l. c. 192, 35 S. W. 577; Nichols v. Nichols, 147 Mo. l. c. 400, 48 S. W. 947; DeFord v Johnson, 251 Mo. 244, 158 S. W. 28; Gambino v. Manufacturers’ Coal & Coke Co. (Mo. App.), 158 S. W. 77.]
The argument is advanced in behalf of Mrs. Pool that even though there existed undue intimacy between herself and plaintiff’s husband and even though this amounted to illicit sexual intercourse, still no case is made out showing that she was the enticing and producing cause of the alienation and separation, and that the evidence shows that plaintiff’s husband alienated his own affections for plaintiff and that Mrs. Pool’s acts were at most only passive in their nature.
We fully recognize the rule laid down in 3 Elliott on Evidence, sec. 1643, which is as follows: “To entitle the plaintiff to recover in an action for alienating affections, the burden of proof is upon the plaintiff, and the plaintiff must show that there was a direct interference upon the part of the defendant that not only was there infatuation of the husband or wife for the defendant, but that the defendant by wrongful act was the cause of it.” That rule was quoted with approval in the case of DeFord v. Johnson, 152 Mo. App. l. c. 214, 215, 133 S. W. 393.
Plaintiff’s evidence tended to show that she and her husband lived together some ten or twelve years and that they were rearing a family and that they got along without much discord; that some year’ or more before the separation plaintiff noticed a coolness toward her on the part of her husband. In July, 1911, she heard that there was gossip about him visiting Mrs. Pool’s millinery shop and she advised Mr. and Mrs. Pool of this town talk and requested that they have Claxton stop his visits there. Nevertheless, the visits continued the same as before, and they
Defendants’ evidence tended to establish a denial and explanation of the above detailed circumstances and that the relation amounted to nothing more than right acting. The jury drew inferences sustaining plaintiff’s contention. That the jury could reasonably infer, from the evidence that the relation existing between plaintiff’s husband and Mrs. Pool brought about, an alienation of Claxton’s affections for his wife and the subsequent separation, no one will contend, and that such relation, if it did exist, was induced by some one cannot be denied; it was for the triers of the fact to say from all the evidence and conditions presented to them who was the enticing party, and having done so, their decision must settle that fact in this court. The jury has a right to reason from effect to cause. [Cornelius v. Cornelius, 233 Mo. 1, 135 S. W. 65.] They had before them the final separation, the evidence of circumstances pointing to immoral conduct, and the constant visits paid Mrs. Pool covering a long period of time. Her knowledge that such attention as Claxton was paying was against the plaintiff’s wishes, with no protest or attempted protest on Mrs. Pool’s part, is also shown. It may be said'that no one fact taken by itself will justify the verdict, yet all considered together do. Evidence in a case touching the issue here involved must of necessity be largely circumstantial. It may be likened to the coming of a fog: You cannot point to the exact place whence it comes or know the exact moment it arrives, yet in the course of time no one doubts its presence and envelopment. Were there any doubt concerning the question here, it would be removed upon reading the case of Linck v. Vorhauer, 104 Mo. App. 368, 79 S. W. 478, where, on a state of facts of much less probative force than those with which we are dealing the court upheld a verdict to the effect that the woman was the enticer and in
“The court instructs the jury that in order to maintain this action, it is not necessary that plaintiff prove by the evidence that she had at any time the love and affection of her husband. That under the law a stranger has no right to voluntarily and unasked interfere with and disturb the concord and unity of the domestic relation or to interfere and by any chance cut off or prevent the possibility of a future affection springing up between two spouses. That the plaintiff had the right to ‘seek the comfort, companionship, protection and aid of her husband without the interference of any outside person and although the jury may believe from the evidence in this cause that the home life of plaintiff and her husband was unpleasant, nevertheless this would not justify defendant Mrs. L. D. Pool in voluntarily intermeddling with plaintiff’s domestic affairs, if she did so intermeddle, and if the jury believe from the evidence that plaintiff’s husband still would have lived and remained with her if it had not been for the wrongful acts, conduct and influence of defendant Mrs. L. D. Pool, if any, and that*29 he was induced to separate and remain apart from plaintiff by the intentional wrongful acts, conduct and influence of defendant Mrs. L. D. Pool and that said acts, conduct and influence was naturally calculated to cause such separation, then your verdict will be for plaintiff and against Mrs. L. D. Pool.”
We have written in italics the words “by any chance cut off.” This part of the instruction, standing alone, is subject to criticism. It should have been written ‘ ‘ cut off any chance. ’ ’ However, the remainder of the same instruction shows plainly that the jury was to find that wrongful and intentional acts, conduct, influence, etc., prevented a reconciliation. The instruction itself cured the error.
Instruction 7 given by the court of its own motion clearly defined the elements necessary to be found, and covered the case so far as Mrs. Pool was concerned. It is as follows:
“Before you can find the issues for plaintiff against defendant Mrs. L. D. Pool you must believe and find from the evidence that she intentionally influenced the husband of the plaintiff to withdraw his affections from plaintiff and desert her. It is not enough for plaintiff to show merely that defendant Mrs. L. D. Pool was friendly with the husband of plaintiff, knowing at the time that he and the plaintiff- were having discord in their marital relations, nor is it sufficient that you should believe merely that defendant’s conduct in her association with plaintiff’s husband amounted to impropriety or was even of a scandalous nature, but before you can find for plaintiff, it must be shown by the evidence that defendant Mrs. L. D. Pool’s conduct, in her association with the husband of plaintiff, was improper and wrongful and further that Mrs. L. D. Pool intended by such conduct to cause plaintiff’s husband to withdraw his affections from her or desert her, and in addition to this, it must be shown by the evidence that such conduct on the part*30 of defendant Mrs. R. D. Pool did in fact cause the husband of plaintiff to withdraw his affections from plaintiff or desert her. If plaintiff has failed to prove any one of these alleged facts by the greater weight of the evidence, it will be your duty to find the issues for defendant Mrs. R. D. Pool.”
All phases of the case were covered by the instructions given, which makes it unnecessary to review the assigned errors in the court’s refusal to give other instructions offered by the defendant Mrs. R. D. Pool.
It follows that the judgment is amply sustained both in law and fact as to defendant Mrs. R. D. Pool.
It is doubtful what theory the trial court had in mind in submitting the question of Pool’s liability to the jury. Instructions 1 and 8 only permitted a recovery against him predicated on his being a joint tortfeasor in that the jury must find that he knew of, encouraged, and advised his wife in her wrongful acts, while instruction 2 permitted a recovery against him “if from all the evidence the jury believe that defendant Mrs. L. D. Pool with the knowledge and approval
As a general proposition of law it is settled in this State that the husband is liable for the torts of his wife, and that the Married Women’s Acts emancipating her so far as her property rights and the right to sue and be sued are concerned do not by express language or implication relieve the husband of his common-law liability for her torts. [Taylor v. Pullen, 152 Mo. 434, 53 S. W. 1086; Flesh v. Lindsay, 115 Mo. 1, 21 S. W. 907; Nichols v. Nichols, 134 Mo. 187, 35 S. W. 577; Nichols v. Nichols, 147 Mo. 387, 48 S. W. 947; Bruce v. Bombeck, 79 Mo. App. 231; Clow v. Chapman, 125 Mo. 101, 28 S. W. 328; Love v. Love, 98 Mo. App. 562, 73 S. W. 255; Leavell v. Leavell, 114 Mo. App. 24, 89 S. W. 55.]
In the opinion in the case of Bruce v. Bombeck, supra, l. c. 235, five instances are given where the husband is liable for his wife’s torts, namely: ££ (1) If the tort is committed in the husband’s presence, and nothing more appears, it is his sole tort, as the wife is presumed to have acted under his coercion. (2) If the tort is committed in his presence, but she appears to have acted deliberately and freely, it is their joint ¡tort. (3) If the tort-is committed in his presence and-
It will be noted that none of the instances there set ont correspond with the situation here, because the evidence shows that the wrongs committed, if at all, were not in the presence of the husband sought to be held, yet the charge is that they were committed with Ms knowledge and consent. The substantial evidence of wrongful conduct on the part of plaintiff’s husband and Pool’s wife is that concerning the frequent visits to Mrs. Pool’s shop, the questionable conduct therein, and the evidence of immoral conduct at the granary. At no time was the husband of Mrs. Pool present when these relations were going on and there is no evidence that he ever had any more than a knowledge that there was gossip around town that plaintiff’s husband went to the millinery shop too often from which certain persons drew the conclusion that there were improper relations existing. It is true, he remarked that “people will talk anyway,” and that he did not, as he might have done, fly into a rage about it. Yet his course, may be easily accounted for in that all the evidence shows that he had implicit' faith in his wife’s fidelity. Must he be condemned and mulct in damages because •he placed that faith in his wife that is commendable in a husband, and because, forsooth, he did not believe the town gossip concerning her!
In all the cases we have examined where the husband is held liable for his wife’s tort, the wrong committed by her was not one that was at the same time an equal or greater wrong to her husband. Here the jury has found that defendant Pool’s wife by a course
Admitting that the extent to which the doctrine that a husband is liable for his wife’s torts is based on some good reasons, we are not willing to extend its bounds here, where to do so would shock the sense of justice. The maxim that governed the courts in centuries gone by applies with equal force today — “The law never works an injury, or does a wrong.” [Jenk. Cent., 22.]
Such a case could only have arisen in comparatively recent times as it has only been since the Married Women’s Acts have been passed that the injured wife could sue at all for wrongs done her. In the ease of Leavell v. Leavell, 114 Mo. App. 24, 89 S. W. 55, which undertook to hold the husband and wife as joint tortfeasors, we find the following language (l. c. 31, 32): “If Mrs. Leavell did not wrongfully influence Garfield to abandon plaintiff, then the verdict and' judgment should not have been again'st her. Or, if Mr. Leavell did not so influence Garfield, but his wife did by acts out of the presence of Mr. Leavell, then the verdict should have been against her and not him.” Had the learned judge in that case thought the husband responsible on the marital relation for the wife’s tort he would have treated the joint tort-feasor theory as
We are not entirely without precedent so far as the principle we are applying here for the first time on the question of liability for tort. The common law of England held the husband responsible for the wife’s ante and postnuptial contracts, and this for the same reasons that he was held liable for her torts during coverture. Yet we find that where a husband went out of the realm of England leaving his wife and children with a sufficient fund for their maintenance and on his return found that she had formed an adulterous connection with ^another man and had contracted debts of necessity for his children in his absence, he was not liable for those debts, it being held that her conduct in living in a state of adultery divested her of the authority arising out of the marital relation. [See, Atkyns v. Pearce, 89 E. C. L. 762.] Nor was a man liable to the penalty for neglecting and refusing to maintain his wife who had left him and committed adultery. [See, The King v. Flintan, 20 E. C. L. 464.] We therefore hold, on principle, that a husband is not liable and has never been held liable' at common law for the wrongs of his wife to a third person by reason of her conduct where such conduct is also a violation of her marital duties to him.
Defendant L. D. Pool’s instruction 15 correctly declared the law and should have been given if the evidence had justified the charge that L. D. Pool was a joint tort-feasor.
In conclusion, we feel that a few remarks on the general state of the law relative to the’liability of the husband for the torts of his wife may not be out of place. It has not been necessary for us, as has been shown, to do violence to any controlling decisions in
It follows from what has been said that the judgment is affirmed as to defendant Mrs. L. D. Pool and reversed as to defendant L. D. Pool.
Dissenting Opinion
DISSENTING OPINION.
In the result óf the majority opinion, except as to the holding that defendant, L. D. Pool, is not liable, I concur. The conclusion reached in that opinion as to his exemption is not, I think, justified by the decisions of the Supreme Court of this State. The general rule is recognized by the majority that in this State the husband is liable for the torts
In discussing the common-law liability of the husband for the torts of his wife, Judge Gantt, in Taylor v. Pullen, 152 Mo. 434, 439, 53 S. W. 1086, states that “so far no writer or court has as yet furnished satisfactorily all the reasons which may have influenced the adoption of the rule at common law, and until they are produced, certainly the courts cannot declare that all the reasons have ceased and thus abolish the rule by judicial decision.”
The opinion in Nichols v. Nichols 147 Mo. 387, 408, 48 S. W. 947, discusses the effect of the “Married Woman’s Act” (now sections 8304, 8308, 8309 and 8310, R. S. 1909) and .applies the principle that the expression in said section 8310, that the husband shall be exempt from all liabilities incurred by the wife before their marriage (which, as I understand, relieved the husband from some liabilities existing at common law), is in effect the exclusion from said Act of any other exemption from liabilities which existed at • common law. Further, in that opinion, in discussing the common-law reason for holding the husband accountable for the wife’s torts, it is said that because under that law the husband absorbed the wife’s property was not the chief reason, though that may have been sufficient, but a broader one existed which was that the husband possessed the power of control and therefore owed a corresponding duty to society for the conduct and actions of his wife; that this basis for his liability was not removed by legislative interference, and that so long as that reason remains, whether or
The Supreme -Court in the Taylor case, refused to engraft any exception onto the rule that was not shown to be such as was known at common law, yet the majority opinion in the ease under consideration entertains- an exception on the theory, as I understand it, that no case has been presented where liability was fixed on similar facts. However, it may be suggested that in many cases, not necessary to collate here, where the husband has had to respond in damages for the torts of the wife, he has suffered pecuniary loss by reason of her acts in addition to the damages he was called upon to liquidate. Under the rule announced in the majority opinion, as I read it, if the wife in committing a tort also damages her husband he is by reason thereof exempted from liability conformable to the common law.
But, if the exemption recognized by the majority opinion should be said to be based on the assumption that the wife in committing a tort of the character here involved violates the marital contract, the reason for the common-law rule announced in the Nichols case, supra, based on his power to control and his duty to exercise such power, should not be overlooked. Must the plaintiff’s marital happiness be surrendered, her home ruined and the lives of her children blasted without recompense by reason of acts of the defendant’s wife, and the husband be exempted from the general rule of the common law in force in this State because in the commission of that wrong on plaintiff the husband of the guilty wife also suffered a wrong, but which might have been prevented by him, or, as the record discloses, which he has condoned? The defendant husband did not admit the guilt of his wife and
A reading o’f tie English cases éited in tie majority opinion to tie proposition that the husband was not liable for necessaries furnished his wife Virile she was living away from him discloses that they are based on the idea of agency. Other cases may be found where such liability is denied on the theory that she has forfeited her right to support, of which the third party had notice, and for acts which the husband had not condoned.
It is evident to me that the exception made by the majority opinion is now for the first time engrafted upon the rule that holds the husband liable for the torts of the wife, which it is held in the Taylor case, supra, should not be done since it did not' exist at common law. One ground for the assertion that this exception did not exist at common law is that the reason for it did not then exist. The husband then .taking all of the wife’s property must of necessity have responded for all of her torts. However, because this situation no longer exists under our statute furnishes no reason, I think, for the exception made by the majority of this court.
Deeming the opinion of the majority in conflict with the decisions of the Supreme Court in the cases of Flesh v. Lindsay, 115 Mo. 1, Nichols v. Nichols, 147 Mo. 387, and Taylor v. Pullen, 152 Mo. 434, this case ¡must be certified to that court for final decision.