| Mo. Ct. App. | Nov 22, 1915
Plaintiff sued for the recovery of both actual and exemplary damages for the alienation of the affections of her husband by defendant, his foster father. The jury found for plaintiff, assessed her actual damages at $3000 and exemplary damages in the sum of $1500, but on the hearing of the motion for a new trial plaintiff (moved thereto by expressions from the court) entered a remittitur of $2000, whereupon the motion was overruled, judgment was rendered for plaintiff for $2500, and defendant appealed.
Plaintiff, at the age of fifteen, and Homer McKay, at the age of twenty, were married in Sullivan county in January, 1912, and lived together until November, 1914, when they separated. Plaintiff, with their two children, returned to her father’s house and Homer continued to reside with defendant with whom he and plaintiff had been living. The evidence of plaintiff tends to show that defendant, actuated by virulent hatred, heaped the grossest indignities and insults upon her in the presence of her husband who not only exhibited no resentment or purpose to protect her, but passively acquiesced in such treatment, finally consented to their separation and her enforced return to her father and chose to remain with defendant.
Further it shows, and this fact virtually is conceded, that after the separation and with the aid of insincere protestations that he was securing means to establish a new home for himself and plaintiff and their children, Homer, prompted by defendant, induced her to join in the execution of a deed to defendant, conveying forty acres of land Homer had inherited from his foster mother, on the false representation that defendant had bought the land at a fair valuation. Defendant gave Homer a check in pretended payment of the purchase price but the check was not presented to the bank and afterwards was returned to defendant.
“And ever since said abandonment, the defendant has wrongfully, wickedly and maliciously detained and harbored plaintiff’s said husband and has kept him separate and apart from her, and has by his said wrongful, wicked and malicious acts and conduct deprived plaintiff, and still deprives her, of the aid, support, companionship, society, protection and affection of her said husband.”
In the first instruction given at the request of plaintiff the jury were told: “The law gives her a right of action against any person who Avillfully and maliciously entices, persuades, induces or influences
This instruction is criticised on the ground that it is reversible error for an instruction, which assumes to cover the whole case and to direct a verdict, to refer to the petition for the essential facts upon which the right of recovery is predicated.
Where the evidence, in its phase most favorable to the pleaded cause, is sufficient to warrant a recovery but falls short of sustaining all of the allegations of the petition, it is reversible error to refer the jury to the petition for the facts of the case, since the effect of such practice would be to abolish evidentiary limits and restrictions and to allow the plaintiff to recover upon alleged but unproved facts. “It was the duty of the court to tell the jury what are the essential facts to be found undér the pleadings.” [Procter v. Loomis, 35 Mo. App. l. c. 488; McGinnis v. Railroad, 21 Mo. App. 399" court="Mo. Ct. App." date_filed="1886-04-05" href="https://app.midpage.ai/document/mcginnis-v-missouri-pacific-railway-co-6615074?utm_source=webapp" opinion_id="6615074">21 Mo. App. 399; Remmler v. Shenuit, 15 Mo. App. 192" court="Mo. Ct. App." date_filed="1884-02-12" href="https://app.midpage.ai/document/remmler-v-shenuit-8258824?utm_source=webapp" opinion_id="8258824">15 Mo. App. 192; Edelamn v. St. L. Trans. Co., 3 Mo. App. 503" court="Mo. Ct. App." date_filed="1877-04-24" href="https://app.midpage.ai/document/edelmann-v-st-louis-transfer-co-8258015?utm_source=webapp" opinion_id="8258015">3 Mo. App. 503; Comston v. Railroad, 25 Mo. App. 619" court="Mo. Ct. App." date_filed="1887-04-25" href="https://app.midpage.ai/document/corrister-v-kansas-city-st-joseph--council-bluffs-railroad-6615490?utm_source=webapp" opinion_id="6615490">25 Mo. App. 619; Webb v. Carter, 121 Mo. App. 147" court="Mo. Ct. App." date_filed="1906-12-11" href="https://app.midpage.ai/document/webb-v-carter-8264344?utm_source=webapp" opinion_id="8264344">121 Mo. App. 147.] But this rule does not obtain in instances where the allegations are no broader than the proofs (Remmler v. Shenuit, supra), for the obvious reason that in such case the reference to the petition cannot be said to have enlarged the cause defined by the evidence. Unless reference to the petition has the effect of broadening the evidentiary issues, it should not be classed as prejudicial and, therefore, reversible error, though it is a practice likely to mislead the jury and for that reason should be avoided.
Complaint is made of prejudicial error in the seventh instruction given at the request of plaintiff and in the modification by the court of defendant’s eighth instruction.
On the hypothesis, which we find abundantly supported by evidence, that plaintiff was compelled to leave the home provided by her husband because defendant, who dominated that household, created an intolerable situation for her by his continued hostile and bitter attitude and violent and truculent conduct towards her, and by his open, incessant and successful efforts to turn her husband against her, the instruction told the jury that in leaving her husband under such compulsory circumstances, plaintiff was not guilty of legal desertion but, on the other hand, that such facts would constitute an abandonment of her by her husband. The eighth instruction of defendant, which the court modified, in dealing with the same
We do not share the view of counsel for defendant that these instructions, as well as the instruction given for plaintiff on the measure of damages, injected extrinsic and prejudicial issues into the case by “making defendant responsible for the acts of Homer McKay who was the husband of plaintiff” and-by enlarging the pleaded cause of action for aliénation of affections into an omnibus action which included not only a right to recover for assault and slander committed by defendant, but also to recover damages for her husband’s abandonment of her. The issue of whether plaintiff left her husband without just cause or excuse or because she was driven from home by her father-in-law, after he had gained complete mastery over the miud of her husband, was the principal issue of fact contested at the trial, and relates to the most important and indispensable ingredient of a cause for alienation of affections. Whether the wrongful intermeddler employs seductive arts and wiles, or violence and intimidation, or both, the final issue in such cases is whether or not he intentionally thrust himself between husband and wife and pursued a course of conduct which eventuated in the destruction of their marital unity and the estrangement of one spouse from the other.
The proofs of plaintiff tend to show that defendant in his practices ran the gamut of ingenious and
CertaiMy proof of the nature, extent and ultimate result of the influence defendant acquired over the.' mind of his son and exerted to the disruption of the marital relationship was germane to the issues tendered by the petition and the court did. not err in defining the conditions as outlined by the evidence which would justify the act of plaintiff in leaving the home to which her husband had taken her but wMch had been made intolerable. We find no substantial difference between the instruction as asked by defendant and as modified by the court in the defimtion of the causes which would excuse the wife for leaving her ’husband. The interpolated clause “without reasonable excuse therefor,” has the same meamng as the •previous clause “without good and sufficient reasons therefor” given as a qualification of the wifely duty to follow the fortunes of the husband and abide in the home he provides for her. With or without the modification the instruction substantially is the counterpart- of plaintiff’s seventh instruction which, inferentially conceding the duty of the wife not to forsake the home of her husband without good cause, submitted an hypothesis of facts which, if true, constituted such good cause.
The rule that the wife is bound to follow the fortunes of her husband and toTive in the home he provides for her still obtains in this state. [Coulter v. Coulter, 175 Mo. App. 1" court="Mo. Ct. App." date_filed="1913-12-01" href="https://app.midpage.ai/document/coulter-v-coulter-6630761?utm_source=webapp" opinion_id="6630761">175 Mo. App. 1; Droege v. Droege, 52 Mo. App. 84" court="Mo. Ct. App." date_filed="1892-12-20" href="https://app.midpage.ai/document/droege-v-droege-6617219?utm_source=webapp" opinion_id="6617219">52 Mo. App. 84;
The fourth instruction asked by defendant, which the court refused to give, in substance was covered by the eighth instruction and its refusal may be sustained on the ground that it was merely repetitive. Other rulings of the court on instructions of which defendant complains were so clearly proper that special reference'to them is deemed unnecessary.
The court did not err in refusing to permit the husband of plaintiff, called as a witness by defendant, to testify for the alleged reason that he was incompetent. Our statutes (section 6354 and 6359, R. S. 1909) are interpreted as an enabling act ‘ ‘ making-persons competent under certain conditions who at common law under like conditions were incompetent witnesses.” [Lawson v. Cooper, 174 Mo. l. c. 223.] They do not go far enough to abrogate the application of the common law disqualification of husband or wife to testify for or against his spouse in the latter’s suit for alienation of affections. Counsel for defendant urges as applicable an exception to the hearsay rule which, in actions of this character, allows evidence to be received of declarations made at a time when there was no motive to deceive by the spouse whose af