115 Neb. 601 | Neb. | 1927
This is an action commenced in the district court for Fillmore county by appellee, Meta Larsen, hereinafter called plaintiff, against Nick Larsen, Anna Larsen, and Ida Larsen, father-in-law, mother-in-law, and sister-in-law respectively of plaintiff, appellants, and hereinafter called defendants, seeking to recover damages from such respective defendants for alienating the affections of plaintiff’s husband, and depriving her of his support, maintenance, comfort, and companionship. After the issues were duly joined, the case was tried to a jury, and verdict returned and judgment entered for plaintiff against the defendants, and each thereof: to reverse which such defendants respectively appeal. The petition also charged the defendants with having wrongfully and maliciously formed a conspiracy seeking to deprive the plaintiff of the above indicated
The defendants answered separately, and such answers were identical in terms. Each thereof, in substance, was as follows: Admits the marriage, defendants’ relationship with Charles Larsen, the husband, and that no objections were interposed by defendants to such marriage; admits that as such father, mother, or sister, as the case may be, they at various times have advised with such Charles Larsen in reference to his personal affairs, when solicited by him to do so, but in good faith and without malice, and with a view solely to his welfare as such relative; further admits that plaintiff commenced an action for separate maintenance against her husband alleging as cause his breach of marital duties, of which no act of defendants was the controlling cause, and that plaintiff voluntarily dismissed such application; and for further answer, and as an independent paragraph thereof, defendants interposed a general denial to each and every allegation in plaintiff’s petition “not hereinbefore expressly admitted or alleged.”
To these respective answers plaintiff interposed by way of reply a general denial.
. The errors relied on for reversal are as indicated by the motion for a new trial, the briefs filed, and oral argument had, and include the usual charge that the verdict is not supported by the evidence and is against the weight thereof ; also exceptions to every instruction given by the court, and the refusal of the court to give numerous instructions asked by the defendants; also errors of law occurring at the trial.
We will first consider the challenge to the instructions, so far as we deem it necessary to a proper disposition thereof. Instruction No. 1, complained of, contains an extended synopsis of the facts set forth in the petition; also
As the case may be retried, it might be well to consider the law applicable to the facts, as we view the record. The admission in the answers that these respective relatives counseled with the husband, when so requested, as to his interests and affairs, was not an admission of any wrong-doing. on their part, as they were clearly within their rights in so counseling. As we said in Melcher v. Melcher, 102 Neb. 790: “If the evidence is that the parents’ sole motive was to promote the welfare of their son, and the circumstances and conditions were such that they might reasonably believe that the advice given was justifiable and for the best interest of all parties concerned, they cannot be held in damages.”
Instruction No. 19, complained of by defendants, is as follows: “You are instructed that if you are satisfied that the defendants, or any of them, alienated the affections of Charles Larsen for Meta Larsen, and she thereby 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, against such defendant or defendants, would be her actual loss of support, and also the loss of affections and companionship of her husband, Charles Larsen, and the humiliation, if any, which she
On the trial of the case the wife was permitted, over objections of the defendants, to detail in evidence conversations which she had had with her husband, in the, absence of the defendants, for the purpose of showing, or tending to show, the condition of her husband’s mind and his feelings toward her at such respective times. As we said in the course of our opinion in Stocker v. Stocker, 112 Neb. 565: “While evidence of what the husband said out of the presence of the defendant would ordinarily be hearsay and incompetent to prove such wrongful conduct of defendant as. would tend to cause the husband to lose his affection for his wife, such evidence may be properly received to show the state of the husband’s feelings toward his wife, and in this case the court, by proper instruction, informed the jury that such evidence was received only for such purpose.” Hence, error was not committed by the trial court in admitting this evidence for such purpose.
Defendants, on their respective parts, procured the husband to be sworn as a witness, but owing to the objection
While other errors are complained of as to instructions, as well as to the introduction of testimony, they are not likely to occur at a future trial of this case, if such should be had, and therefore are not further considered.
The judgment of the trial court is reversed and the cause remanded for further proceedings.
Reversed.