96 Wash. 172 | Wash. | 1917
— The plaintiff, Carola B. Jones, brought this action against T. E. Jones, her father-in-law, to recover damages on the ground of alienation of her husband’s affections. A verdict of $25,000 was returned by the jury, upon which the court ruled that he would grant a new trial unless plaintiff would submit to a reduction to the sum of $12,500. The plaintiff submitted to the reduction, and judgment was given accordingly. The defendant appeals.
The principal error assigned by the appellant is the denial of his challenge to the sufficiency of the evidence, which was raised by motions for nonsuit, for a directed verdict, and for judgment non obstante veredicto. The appellant contends that there was an entire absence of any testimony showing, or tending to show, malice on his part, and that, in the absence of any proof of malice, the case should have been taken from the jury and judgment given for appellant. The evidence on the part of the respondent tended to show that Tom Jones, the son of appellant, had been attentive to the respondent for a period of over a year prior to the marriage, during which time he displayed towards her the utmost affection, and exhibited the extremest jealousy of the attentions of other young men to her. He was a constant visitor in her home, taking her frequently for auto rides and to the theater. The respondent at this period was sixteen years of age, and Tom Jones was twenty-one. After they had been thus intimate for about a year, respondent discovered, in August, 1914, that she was pregnant. Tom Jones was apparently ignorant of this state of affairs until the father of respondent, in October, 1914, called him to the house and informed him of her condition. The respondent was hysterical at the time, and Tom Jones put his arm around her and told her not to worry and everything would come out all right, saying: “The only right thing to do was to get married, but he had to speak to his father first, because he was in no position to support a wife;” then kissed her goodbye and left. He went home and informed his father, who testified that he
On their return from the marriage ceremony, respondent and her family left the interurban car at Fremont, appellant and his son going on down town. It was in evidence that the appellant promised to call at the home of respondent the next day. He did not go there, however, until about a week later, and then in response to an insistent summons. On this visit appellant asked respondent about her condition, and suggested that she go to some other city until the baby was born. She declined, and then he told her to go to the hospital in Seattle and have the best of care and he would pay all of her bills. She testified that he asked her when she would release his son, and she told him that, with a small baby on her hands, she would not release him. “Well, he says, ‘You can give the baby to Tom, and you can always get married again.’ Then he got kind of mad and he told me he absolutely refused Tom to live with me. He said he had another girl picked out for Tom and had other plans.” This testimony, though denied by appellant, is substantiated by that of the sister of respondent, who was present at the meeting between the parties. The appellant left this meeting in an angry frame of mind, and subsequently declined to pay the hospital bills of respondent. Ap
We think the motions challenging the sufficiency of the evidence were properly denied by the court, as there was sufficient evidence to warrant the submission of the case to the jury. These objections were based chiefly on the assumption that there was no proof of malice on the part of appellant. It is true the appellant testified there was none, but we think there were matters in evidence from which malice might be inferred. Malice, like other mental processes, is as well shown by conduct as it is by the testimony of the person whose condition of mind is the subject of inquiry.
An objection is made to the declaration of the son to the effect that his father had forbidden him to talk to respondent, that their matter had been put in the hands of attorneys, and she would have to talk to them. We do not find that timely objection was made to this; but conceding the fact otherwise,, such evidence was admissible under the authorities. In Nevins v. Nevins, 68 Kan. 410, 75 Pac. 492, it is said;
“The declarations of the young husband, although not a party to the suit, were admissible to show the effect that his father’s wrongful interference and misrepresentations had upon his mind. It was competent not only to show the active*176 and persistent efforts of the defendant to alienate his son from Ella, but it was also both proper and necessary to show the effect of such efforts upon the son. For this purpose the testimony was competent.”
In Williams v. Williams, 20 Colo. 51, 37 Pac. 614, it is said:
“Under the issue to be determined, and in connection with the testimony introduced, it was, in our opinion, proper to admit in evidence the declarations of Edward, for the purpose of showing what influenced his conduct in separating from his wife. It is true his mere declarations were not admissible to show what his mother’s conduct was, nor was it, of itself alone, material how bad his mother’s conduct was towards plaintiff; for, no matter how bad her conduct was, she could not properly be held liable in this action unless the effect of her conduct was such as to cause Edward to become estranged from and desert his wife. From the record it clearly appears that the trial court was careful to place the declarations of the husband upon this ground. Thus limited, it was not error to admit proof of his declarations.”
Contention is made by appellant that it was error to exclude the testimony of the husband purporting to show want of affection for his wife, and also the testimony of other witnesses as to declarations made by the husband prior to any knowledge on appellant’s part of the relations between his son and respondent, for the purpose of establishing that the husband’s feelings and conduct toward respondent were not influenced by his father. Under Rem. Code, § 1214, providing that one spouse shall not bé examined for or against the other without such other’s consent, we have held in Stanley v. Stanley, 27 Wash. 570, 68 Pac. 187, a suit by the wife against her husband’s parents for alienating the affections of the husband, that the husband was not competent to testify over the objection of the wife. If the husband was incompetent to testify as to any matter, clearly the statute could not be evaded by admitting in evidence declarations made by him to third parties. While the state of mind of the husband in this case was a material fact to be considered in determining whether there had been an alienation of the husband brought
Appellant further contends that the verdict of the jury was so grossly excessive as to show passion and prejudice on their part, and that a new trial should be awarded in consequence. The verdict, as we have seen, was for $25,000, and was reduced by the trial judge to $12,500. The latter figure still seems large, but there is evidence justifying an award, and there is no showing, other than the size of the verdict, that the jury was influenced by prejudice. The jury was warranted in finding from the evidence that the appellant consented to the marriage for the purpose of avoiding a criminal prosecution against his son and with the ultimate idea of securing a divorce of the parties, and that he was the active agency in keeping his son away from his wife. Public policy has regard for the maintenance of the marriage relation, and appellant’s acts and conduct were in opposition to that policy. Under the circumstances, we are loath to disturb the verdict of the jury as modified by the trial court.
Errors are assigned relating to the admission and exclusion of evidence other than those above indicated, but we find none of them material. Objections raised as to several of the instructions given are not well taken, even if the paragraphs complained of be withdrawn from their setting as a part of the charge given. The instructions as a whole were proper statements of the law and presented the appellant’s defense to the jury in the clearest and fairest way possible.
The judgment is affirmed.
Ellis, C. J., Parker, and Holcomb, JJ., concur.