75 Neb. 557 | Neb. | 1906
This was an action for the alienation of affections, in which the plaintiff, Cecile Ross Harvey, wife of George D. Harvey, alleged that William H. Harvey, Mary B. Harvey, and Arthur P. Harvey, who are respectively the father, mother and brother of George T). Harvey, conspired together, for the purpose of estranging and alienating the affections of George D. Harvey from the plaintiff, his wife, and causing him to abandon plaintiff, and refuse to live with her as her husband and to provide for her support and maintenance. The defendants answered jointly, admitting the marriage of plaintiff to George D. Harvey, and denying each and every other allegation in the petition. On issues thus joined, there was a trial to the court and jury, a. verdict for the plaintiff for $3,000 damages, judgment on the verdict, and to reverse this judgment defendants bring error to this court.
The facts underlying this controversy are that for several years the defendants in this cause of action and George D. Harvey, husband of the plaintiff, have resided
The contention seems to be that, because the plaintiff had alleged conspiracy between the three defendants and the testimony was not sufficient to show that all the defendants had conspired together, therefore the entire cause of action failed. In some jurisdictions the allegation of conspiracy to commit a tort is treated as mere surplus-age in a petition, and the defendants named are all proceeded against as joint tortfeasors. This rule, however, is subject to the following qualifications: Where the act, if committed by any one of the parties charged, would constitute an actionable wrong, then the allegation of conspiracy is surplusage, except as to the rule of admission of evidence making admissions and statements of one of the conspirators binding on the rest. On the contrary, if the tort bé actionable only when committed by a conspiracy, no recovery can be had without proof of the conspiracy. 1 Jaggard, Torts, ch. 9, p. 639; Parker v. Huntington, 2 Gray (Mass.), 124; Garing v. Fraser, 76 Me. 37; Brinkley v. Platt, 40 Md. 529. Now, in the case at bar, the tort alleged was actionable, if committed by any one of the defendants, whether the others confederated to bring about the result or not. Consequently, when the three defendants joined in a motion to direct a verdict, the court was justified in overruling the motion, although the evidence may not have been sufficient to establish a
Complaint is next urged against the action of the trial court in admitting evidence offered by plaintiff to show the financial ability and business thrift of her husband. We think this evidence is clearly admissible. If plaintiff had suffered the loss’ of the association and support of her husband through the agency of the defendants, or any of them, her measure of damages would be her actual loss of support, and also the loss of affections and the humiliation and disgrace, if any, which she might suffer as a logical result thereof. In estimating the amount of her loss of support, it was proper for the jury to take into consideration the earning capacity and the financial standing of the husband.
It is urged that the court erred in not instructing the jury as to the privilege of the defendants father and mother in advising in good faith with their son with reference to his domestic relations, even if such advice had led to a separation from the plaintiff. With reference to this contention, it is well .to suggest that no such instruction was requested by the defendants, or any of them, and again, as both defendants father and mother denied that they had ever advised their son to abandon his wife, there was no testimony on which to base the instruction. Rath v. Rath, 2 Neb. (Unof.) 600.
It is finally claimed generally that the court should have given more specific instructions to the jury, but no instruction given by the court is pointed out as inherently wrong. While it is true the instructions were very general in their nature, yet no instruction of any kind was requested by the defense, and, consequently, under the well-established rule of this court, defendants are not in shape to avail themselves of this complaint.
Finding no reversible error in the record, we recommend that the judgment of the district court be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.