105 Neb. 663 | Neb. | 1921
The plaintiff recovered a judgment for $8,000 against the defendant, her father-in-law, in an action for damages for alienating the affections of the plaintiff’s husband, Ernest Ruhs. Defendant has appealed.
The petition is in the usual form of such actions, and charges in substance that, soon after the marriage of the plaintiff and Ernest Ruhs, the defendant, with the intention of causing a separation between the plaintiff and her
A number of errors are relied upon as a basis for a reversal of the judgment, the principal ones of which will be noted. The principal error assigned is that the evidence does not support the verdict. We cannot, within the limits Avhich should be given to an opinion, revieAV the entire testimony, and must content ourselves with a very brief summary of the outstanding facts. At the outset Ave may say that there was a flat contradiction betAveen the plaintiff’s and defendant’s testimony upon every material fact.
On behalf of the plaintiff the testimony tended to show that plaintiff and Ernest Ruhs were married on February 6, 1909, and that immediately thereafter the young couple, commenced living on a farm belonging to the defendant, the son Avorking the farm on shares; that defendant and his wife were often at the home of the young people; that soon after the marriage the defendant stated to the plaintiff, in the presence of her husband, that the plaintiff Avas in “trouble” by another man, and later, Avhen the child was born, stated that he did not want his son to support other men’s kids; that defendant persisted in telling that she was with child before her marriage, notwithstanding the child was born more than 10 months after the marriage; that after living for about six years on the farm, during which time two children were born, the plaintiff and her husband removed to Stanton county, and
Ernest Ruhs’ testimony in behalf of the defendant stated that at the time his wife left she expected to return, and that the relationship between them was pleasant. He stated: My father “told me about this trouble.” He asked me if “we were parted or divorced, and it just liked to knock me down at first.” He said: “You can come up here and look the thing over for yourself.” George Grotfeld was present, and “he said the same thing, that I didn’t have to take their word for it at all; that I could come over here and see for myself.”
On the same day the parties started from Norfolk. Arriving at Kearney they at once took an automobile for Hildreth, arriving there in the evening. They then drove to the home of Henry Wessel, an uncle of plaintiff, where
The defendant denied practically all of the charges made, against him. He admitted going to Norfolk and telling his son of the rumors of his wife’s conduct. He denied having anything to do AAdth the arrest of the plaintiff, except that he was along as the driver of the car, and that the action taken by his son was upon the son’s own initiative; that the son got the information upon which he acted from Wessel.
Under this state of the record it seems to us that the question presented was one for the jury to pass upon, and that the evidence and the fair inferences therefrom are sufficient to support the verdict.
“The court instructs you, gentlemen of the jury, that if you find from the evidence that Ernest Ruhs has abandoned the plaintiff, his wife, and you find that the conduct of the defendant, Albert Ruhs, was the controlling cause which induced Ernest Ruhs, plaintiff’s husband, to leave the plaintiff, and if you are satisfied from the evidence that but for the conduct of the defendant Ernest Ruhs would not have left the plaintiff, his wife, then the plaintiff is entitled to recover in this action, although you may find from the evidence that there might have been causes contributing to the same result.”
The argument is made that the instruction is misleading, in that it fails to state that the facts to be found by the jury must be established by a “preponderance of the evidence.” Were this the only instruction given, it might Avell be subject to the criticism directed against it. But it is Avell established that in passing upon the correctness of instructions they must be considered, as a Avhole, and if, Avhen so considered, the laAV is correctly stated it is all that is required.
By another instruction the jury were told that before the plaintiff “would be entitled to recover a verdict at your hands, she must convince you by a preponderance of the evidence of the truth of the material allegations of her petition,” and among the material allegations to be found by the jury Avas: “That the defendant, Albert Ruhs, charged the plaintiff in the presence of her husband AAdth being a bad Avoman, and having improper relations Avith other men, and by such charges induced Ernest Ruhs, the husband of plaintiff, to abandon her- and her said children and to apply for a divorce.” Considering the instructions as a Avhole, we do not believe the jury Avere misled in the matter complained of. We have examined the Avhole charge, and it is as favorable to the defendant as he had the right to ask.
But it is urged that the court erred in failing to incorporate in its instructions the idea that it Avas the privilege of the father to in good faith advise his son Avith respect to his domestic happiness — citing Melcher v. Melcher, 102 Neb. 790, and Trumbull v. Trumbull, 71 Neb. 186. Undoubtedly it is a good defense on the part of a parent or guardian, in an action of this nature, to sIioav that advice given Avas Avith honest motives and a sincere belief that it was for the moral and social Avelfare of the child, or ward; but, to be available, both the relationship as well as the good motives must be pleaded as a defense. In Rath v. Rath, 2 Neb. (Unof.) 600, it is said: “In an action by a wife, against her father-in-laAV for alienating the affections of her husband and causing him to abandon her, parental advice, honestly given, Avithout malice, and Avith the intention of benefiting the son, is a defense; but, Avhere such advice is not pleaded nor proven at the trial, the court did not err in refusing to give instructions based on that theory.” To the same effect, Harvey v. Harvey, 75 Neb. 557. In the case at bar the plea was a general denial, and the defendant’s proof tended to shoAV that he took no part in influencing his son in the action taken by him.
Numerous error's are complained of in the ruling of the court in limiting the cross-examination on the part of the defendant. In some of the instances related Ave are inclined to the vieAV that the line Avas too tightly drawn; on the other hand, we do not believe there was any substantial error to the prejudice of the defendant’s rights in the rulings of the court.
Other errors are discussed in the brief, Avhich need not be considered further than to say that they have been examined and in our view are not sufficient to a reversal of the case.
There is no prejudicial error in the record Avhich we have been able to discover. The judgment is therefore
Affirmed.