46 Ind. App. 453 | Ind. Ct. App. | 1910
Lead Opinion
Action by appellee against appellant for damages. It is averred in the complaint that appellee was married to Herbert Farneman, son of appellant, on April 11, 1900; that they lived together on a farm owned by appellant until July 14, 1901, when appellee and her husband separated, and since that time have lived apart; that during their separation appellee’s said husband has made no
To this complaint appellant filed a demurrer, which demurrer was overruled, and appellant answered in two paragraphs: (1) By general denial; (2) by averring that “plaintiff’s cause of action did not accrue within two years before the bringing of this action.” On the issues thus made, a trial was had, and a verdict rendered in favor of appellee. With the general verdict the jury returned answers to interrogatories. Appellant moved for judgment on the answers to interrogatories, and the motion was overruled. Appellant then moved for a new trial, and the motion was overruled. The rulings on these motions are assigned as errors. Two of the specifications for a new trial were that the evidence was insufficient to sustain the verdict and that the verdict was contrary to law. Appellant insists that the evidence is not sufficient, to sustain the ver
On February 8, 1904, appellee’s husband instituted a suit for divorce. This action was begun on December 7,
In the cases of Gunder v. Tibbits, supra, and Raymond v. Saucer, supra, it was held that continuous acts of seduction, under promise of marriage, were all the part of one wrong,-and that the statute'did not begin to run after the first act. In the case of Michael v. Dunkle, supra, it was shown that appellee’s wife was seduced while they were separated, and while he was trying to effect a reconciliation. But in the case at bar it appears that the alienation was fixed and complete at the time of the separation. There is not a syllable of testimony that appellee’s husband thereafter desired to return to her, or that appellant sought to keep them apart. If the evidence had shown that there had been recurring reconciliations or desire for reconciliation, on the part of appellee’s husband during the separation, and such reconciliations, or desire for reconciliation had been broken up, destroyed or affected by the malicious acts of appellant, the case would be entirely different and the rules of the eases referred to might properly be invoked. In view of the conversation between appellee and her husband at the time of their separation, and their subsequent conduct towards each other, it cannot be inferred, from his filing a suit for divorce for abandonment in February, 1904, that he had any affection for, or desire for conjugal fellowship with, appellee up to that time. Appellee insists that when the action accrued was a-question of-fact for the jury, and that the jury found, in answer to interrogatories, that appellant, after the separation, in July, 1901, did some act or thing which was wilfully and maliciously intended by her to alienate the affections of her son from appellee; that this cause of action did not accrue on or before July 14, 1901, and that appellee’s husband’s affections became entirely alienated at the time he instituted his suit for divorce.
For the foregoing reasons the judgment is ■ reversed, as of date of submission with instructions to grant a hew trial.
Rehearing
On Petition for Rehearing.
We think it is apparent that these facts are wholly in
With this modification, the petition for a rehearing is denied.