268 P. 807 | Kan. | 1928
The opinion of the court was delivered by
Henry C. Krenkle brought this action against Arthur Selleck and his wife, Julia Selleck, to recover damages for alienating the affections of his former wife, Eva Krenkle. At the trial plaintiff offered his evidence, and when he had rested the court sustained a demurrer to his evidence and gave judgment for defendants. He appeals from the ruling and judgment.
Did the evidence produced by plaintiff tend to establish a right of action against the defendants for the alienation of the affections of his former wife? is the only question presented on this appeal. It appears that the plaintiff and Eva Mears were married October 9, 1923. Each had been married before, and each had children by the former marriage. He had three children who were living apart from him, while Mrs. Krenkle had two children by a former marriage, namely, Paul Mears, aged sixteen years, and Ruth Mears, aged fourteen. He owned a tract of land which was incumbered, and she was living on an improved farm of 240 acres that had descended to her, one-half of which was owned by her and the remaining one-half by her children, Paul and Ruth. Before her marriage he presented to her a prenuptial agreement which contained
The evidence tended to show that shortly after the marriage she complained that the contract was unfair as to Paul and wanted to know where the money was coming from to send him to college, and he testified that she kept on nagging him day after day for money to educate Paul. During the months following the marriage there were disagreements, and she ultimately applied for a divorce. At one time in September, 1925, she telephoned to her parents, the defendants in the case, to come to her home; and they went there and found plaintiff and his wife discussing their differences in a heated manner, and after listening to their discussion for about two hours, Mr. Selleck made the remark, “If you cannot get along any better than this, the only thing you can do is to be divorced.” There was some talk of their entering into a new agreement, and the defendant, Arthur Selleck, remarked that another agreement would not do any good; if you cannot live together with the agreement you have, you had better be divorced. No other representations were made by defendants or any interference by them shown. Afterwards plaintiff and his wife with the defendants went to the office of the probate judge, with a view, it seems, of obtaining a divorce, and were told by the judge that he had no authority to grant one. They then called on a lawyer and discussed their troubles with him, and the defendants left and went to their own home. Shortly afterwards a divorce was granted to Mrs. Krenkle on the ground of gross neglect of duty and extreme cruelty. The plaintiff entered his voluntary appearance in the suit and did not contest the granting of the divorce. No attempt was made to show ill will or malice of the defendants toward the plaintiff. On the contrary, plaintiff testified that his relations with defendants were pleasant, and that until they came in response to the telephone message mentioned they had treated him well, and neither had said anything
“The father stands in a very different relation toward his married son or daughter than a stranger would occupy towards the same persons. Natural affection would imply that the advice and counsel extended to them were prompted by good motives and unworthy objects cannot be presumed. They ought positively to be shown or necessarily deduced from the facts and circumstances detailed.” (Eagon v. Eagon, 60 Kan. 697, 705, 57 Pac. 942.)
Another quotation from the same opinion is:
“ ‘The reciprocal obligations of parent and child last through life, and the duty of discharging these divinely implanted obligations is not and cannot be destroyed by the child’s marriage.’ ” (p. 704.)
In Meek v. Meek, 118 Kan. 106, 233 Pac. 1032, it was said:
“In an action for alienation of affections brought against a parent of the plaintiff’s spouse, proof of a higher degree, if not of a different kind, is required than in the case of a stranger.” (p. 108.)
No testimony is found in the record showing malice or any improper motive, and nothing in the conduct of defendants from which a valid inference might be drawn that defendants were actuated by any improper motives, nor was there any such interference as would give a right of action for alienation of his wife’s affections.
The judgment sustaining the demurrer to plaintiff’s evidence must therefore be affirmed.