43 Ind. App. 115 | Ind. Ct. App. | 1909
Appellee sued appellant for damages for the alienation of the affections of appellee’s husband, who was the son of appellant. The cause was tried by jury, and judgment rendered in favor of appellee in the sum of $1,000.
The court, on its own motion, instructed the jury as follows : “When it is necessary that an act be done maliciously to be actionable in law for the recovery of damages therefor, such act must be done intentionally and wrongfully, without just cause or legal excuse. In other words, the doing of an act maliciously in cases of actionable tort is the doing of such act or acts purposely, without just cause or legal excuse, to the injury and damage of another.”
In the ease of Newell v. Downs, supra, the court say: “On the trial, the court, as to the prosecution alleged to have been malicious, instructed the jury that, ‘though the plaintiff to sustain his case, must prove both malice and want of probable cause, yet if the jury believed from the evidence, under the charge of the court, that Newell had no probable cause for commencing said prosecution, such want of probable cause was sufficient evidence of malice.’ This instruction should not have been given in the unqualified terms in which it is stated, as it tended to mislead the jury. They might well have understood from it, that from simple want of probable cause, they were bound to infer malice, and hence find some damages in favour of the plaintiff. Such,seems not to be the law. ’ ’
And in the case of Reed v. Reed (1893), 6 Inch App. 317, 51 Am. St. 310, the court, speaking of such cases, say: ‘ ‘ When trouble and disagreements arise between the married pair, the most natural promptings of the child direct it to find solace and advice under the parental roof. All legitimate presumptions in such cases must be that the parent will act only for the best interests of the child. The law recog
The rules herein laid down are restricted to suits like the present, where it is sought to recover damages from a parent for the alienation of the affections of a child from a wife or husband, and are not applicable to other classes of torts where other rules prevail.
The force and effect of all the instructions bearing upon this element of the case were the same, and in view of the relations of the parties and the contradictory character of the evidence, we cannot say such action was not prejudicial. Many other questions are presented, but, as they may not arise on- a retrial, they are not here considered.
Judgment reversed, with instructions to grant a new trial.