| Mo. | Apr 20, 1898
This is an action for damages for alienating the affections of plaintiff’s wife, and wrongfully causing her to abandon him. The petition further charges that defendant debauched her, but the jury was not required to pass upon that issue. The answer was a general denial.
The errors assigned relate to the action of the court in the admission and exclusion of evidence, the giving and refusal of instructions, and the failure to set aside the verdict because excessive.
Plaintiff’s evidence tended to show that he was married August 1, 1889, and that he and his wife lived together happily thereafter, until in the month of December, 1892; that, during all that time, she was kind, dutiful and affectionate, and that he treated her with all the consideration and kindness of a devoted husband. The father and mother of plaintiff’s wife were residing with defendant upon his farm, having gone there in November, 1892. The parties were in no manner related to each other. Defendant had no family and they were living with him to help upon the farm and to keep house for him. The plaintiff and his wife in December, 1892, moved into the dwelling where defendant and the father and mother of plaintiff’s wife were living, as above stated. The plaintiff went there to assist his father-in-law in work upon the farm. Defendant was a large landowner, and reputed to be a man of wealth. He began, within a week or two after the arrival of plaintiff’s wife, to show her marked
Without setting out any more of plaintiff’s evidence, it is sufficient to say, that the testimony upon his part tended to show a systematic and constant effort by defendant to win the affections of plaintiff’s wife, to break the ties between' her and her husband, and cause her to abandon him. The defendant .intro
1. The first question that arises is the correctness of the court’s ruling upon the competency of evidence offered.
During the examination of plaintiff, he was asked, by his counsel what caused him to leave defendant’s farm. He answered: “He (defendant) gained the affections of my wife and she was no more a wife to me.” Defendant objected to this answer and saved an exception. It is argued that this statement was a conclusion of the witness and not the statement of a fact. Plaintiff was called upon to give his reason for refusing to remain at the farm. No objection was made to this question. The response was a legitimate answer to that inquiry. ■ The testimony was not offered to show the fact of the alienation of the wife’s affections. If the witness had said in answer to this question that he went away because he believed defendant had alienated his wife’s affections, it would have been an appropriate answer. Yet his belief would not have been competent to establish the fact which he believed to be true. Still, it would have been a proper answer, if it was material to know his reasons for his actions. The witness was being interrogated as to why he left defendant’s place,
If, however, the statement should be held to be a mere conclusion, it is such a conclusion as all the evidence shows beyond peradventure was a correct one, and which defendant did not offer to dispute. The defendant could not possibly have been injured by the admission of this evidence in view of the other testimony in the case.
Several exceptions were taken during the progress of the trial to the exclusion of questions asked the wit-messes by defendant. We have carefully examined 'each of them. It will serve no purpose, except to lengthen this opinion, for us to set them out here. Suffice it to say that we find no fault with the rulings of the lower court in said matters.
2. The first, third and fourth instructions for plaintiff contained a direction to the jury to find for him, if they believed from the evidence that defendant intentionally persuaded plaintiff’s wife to separate and remain apart from him. These instructions contain other matters, which will be noticed later, but all of them include in substance the above direction. They are almost exact copies of those approved in Modisett v. McPike, 74 Mo. 636" court="Mo." date_filed="1881-10-15" href="https://app.midpage.ai/document/modisett-v-mcpike-8006948?utm_source=webapp" opinion_id="8006948">74 Mo. 636. It is argued by appellant that the jury, by these instructions, was authorized to return a verdict against defendant, upon the proof alone of the fact that he persuaded plaintiff’s wife to leave him and separate herself from him, without reference to defendant’s motives in so doing. It is said that a wife may have a good cause to abandon her husband and that a third party in no manner related to her, may, from the best motive, persuade her to do so. This court answered a similar contention in the following language: “The wife may have a just cause for separation or divorce, but she may elect to abide
The principle announced in the instructions ■ complained of, and in almost the same language, met with the approbation of the entire court in the case cited. We have no disposition to depart from that ruling. It is a safe rule to lay down, as this couii has done, that a husband makes' a prima facie case against a stranger, when he shows that such stranger voluntarily and unasked intermeddled with his domestic affairs, and intentionally urged, persuaded and induced his wife to desert and abandon him, and to refuse to live with him; and in the absence of anything in the evidence, as in this case, to justify or excuse such conduct, the plaintiff’s right to a recovery, upon proof of such facts, is established, and the jury was properly so instructed. Modisett v. McPike, supra.
The issues submitted in the instructions were included in the allegations of the petition. The fact that more was alleged than it was necessary for plaintiff to prove, in order to entitle him to a verdict, could not prevent his recovery, where he averred and proved
3. The third instruction is also objected to, on the ground that it refers the jury to the petition to ascertain the issues. After setting out. all' the facts necessary to entitle plaintiff to recover, it adds “as stated in the petition.” This is not error. It comes within the rule in Britton v. St. Louis, 120 Mo. 437" court="Mo." date_filed="1894-02-27" href="https://app.midpage.ai/document/britton-v-city-of-st-louis-8011243?utm_source=webapp" opinion_id="8011243">120 Mo. 437, and State v. Scott, 109 Mo. 226" court="Mo." date_filed="1891-10-15" href="https://app.midpage.ai/document/state-v-scott-8010435?utm_source=webapp" opinion_id="8010435">109 Mo. 226.
It is also argued that this instruction is erroneous because it speaks of defendant’s causing the wife to “sever the marriage relation of husband and wife” and it is said that death' or divorce only could do this, and that the wife could not accomplish it. We do not think that the jury could have been misled by this expression. It would be readily understood to refer to the actual severing of the relations of husband and wife, and not to the legal separation by divorce or the dissolution of the marriage relation by death.
4. The fourth instruction- is criticised. It is as follows:
“4. In order to entitle plaintiff to maintain this action it is not necessary that he should prove by his evidence in the' cause that the defendant directly requested plaintiff’s wife to leave him, or remain apart from him, orto institute a suit for divorce against him; but if the jury believe from the evidence in the case that the defendant was intentionally guilty of such conduct as was calculated to prejudice plaintiff’s wife against him, and to alienate her from him, and to induce her to leave him, to remain apart from him, and that such effect-was intended to be produced by the defendant and was actually produced by his conduct, then the jury should find for plaintiff.”
This is identical with the second instruction in Modisett v. McPike, cited above. It is said that it is
5. Complaint is made that the court gave an instruction in the usual form, to the effect, that if any witness had willfully sworn falsely to any material fact, the jury might disregard the entire evidence of such witness. The ground of this objection is not to the language of the instruction, but that the evidence was not such as to warrant it. Defendant introduced a witness, for the sole purpose of impeaching one of plaintiff’s witnesses by showing previous statements contradictory of her evidence upon the trial. There was a direct conflict between their testimony. While a mere difference in the evidence of witnesses, in ordinary jury trials, will not warrant the giving of this instruction, simply because of such difference between them, yet when there is a material conflict in the testimony, and the trial judge, who has such witnesses before him, and sees their conduct and demeanor upon the stand, gives such an instruction it will not be error. Millar v. Car Co., 130 Mo. 517" court="Mo." date_filed="1895-11-19" href="https://app.midpage.ai/document/millar-v-madison-car-co-8011914?utm_source=webapp" opinion_id="8011914">130 Mo. 517.
The instruction concluded as follows: “And in passing upon the credibility of a witness, the jury are at liberty to take into consideration his manner upon the witness stand; the interest he may manifest, if any, in the case; the reasonableness or unreasonableness of his testimony as compared with the other testimony in the case.”
It has been often decided that the jury in determining the credit to be given a witness may consider his interest in the result of the suit, or his relationship to the parties. So if a witness shows a prejudice against one litigant, or manifests an interest in having the suit result favorably to the other, it may upon the same
6. This instruction was given for plaintiff. “If the jury find for plaintiff, they will assess his damages at any sum they may deem just, not exceeding ten thousand dollars; and in estimating his damages, they may take into consideration the injury sustained by him in the loss of the comfort, society and service of his wife and the wrong and injury done to his own feelings, character and condition; and they may allow such sum by way of smart money' as they consider the defendant from the evidence in the case by his conduct deserves, not exceeding in all $10,000.”
This instruction also is copied from Modisett v. McPike, 74 Mo. 636" court="Mo." date_filed="1881-10-15" href="https://app.midpage.ai/document/modisett-v-mcpike-8006948?utm_source=webapp" opinion_id="8006948">74 Mo. 636-641. The first part enumerates the elements that the jury might consider in estimating the damages. Plaintiff should certainly be entitled to recover, in case where the affections of his wife had been alienated, and she had been caused to desert him, (if there can be any recovery at all) for the loss of the society, comfort and services of the wife, and for the injury done to his feelings. It is said, however, that no injury to the husband’s character, or reputation, which is the sense in which the word is used in this instruction, results in a case of this kind. Hence the injury to his reputation or standing should not have been included. It is argued by appellant that people would not think less of Mm “because she had gone wrong.” This argument would be equally good in criminal conversation cases, suits for seductions, and
It is claimed, also, that this instruction authorized exemplary or punitive damages, without requiring the jury to find that defendant’s conduct was wanton, malicious or was from an improper motive. Exemplary damages can not be given for an ordinary tort, in the absence of proof of malice, wantonness, etc. State to use v. Bungling, 116 Mo. 162" court="Mo." date_filed="1893-05-22" href="https://app.midpage.ai/document/state-ex-rel-mcclenden-v-jungling-8010936?utm_source=webapp" opinion_id="8010936">116 Mo. 162. The propriety of an instruction is to be determined in connection with the evidence upon which it is based. A direction to a jury might be reversible error in one case, when the same instruction in a case where the facts were different, would be upheld. It is improperio assume in an instruction the existence of facts, which are for the jury to find. Yet, where such an assumption has been made, and it is apparent that there was no controversy about the fact so assumed, it has been held not to be error. In this case the jury affirmed, by their verdict, that the defendant intentionally persuaded plaintiff’s wife to abandon him. The only evidence upon which this finding could have been based, showed that defendant boldly stated that his motive was to take the wife for himself, and that the sooner he could get rid of the husband, the sooner he would have her. In fact, the defendant’s conduct and the motives that prompted his actions were not disputed even by his OAvn testimony.
7. The court refused to instruct the jury that there was no evidence of seduction, or criminal intimacy by defendant with plaintiff’s wife. This was properly refused. It is true that there was no direct testimony to that effect. The court could not, however, properly have instructed that there was no evidence from which the triers of the facts could find the existence of such improper relations. Defendant openly declared his love for one known to him to be a married woman. He was her constant companion when circumstances permitted, and made no secret of his desire to separate her from her husband and supplant him in her affections. He wrote in one of his letters, “my life seems full of brightness, when your arms are around me.” Other letters of the most amorous character, are in evidence, and other circumstances which we have no disposition to enlarge upon, convince us that the court properly refused to say that there was no testimony from which the jury might find the existence of criminal intimacy.
8. We are asked to reverse the judgment because the damages are excessive. The amount awarded by the jury was $5,250. This may seem large. But it is no light matter to entice a wife from her husband. The home is the foundation upon which society rests. The marriage relation should be held sacred. The evidence does not disclose a suspicion against the reputation of the wife until she came under the influence of defendant. The testimony is, that the husband was affectionate, and she was kind and dutiful. They lived