93 W. Va. 493 | W. Va. | 1923
The circuit court set aside a verdict in favor of defendant below, plaintiff in error, and awarded a new trial; and from that order this writ of error is prosecuted.
The declaration is in trespass and is by J. P. Rush against J. W. Buckles for damages in the sum of $20,000 for alienation, of, as the brief says, for partial alienation, of the affections of his wife Ellen Rush.
The errors assigned are: (1) refusal of the court to quash the affidavit for an attachment levied on defendant’s property; (2) setting aside the verdict in defendant’s favor and awarding a new trial.
To meet the assignments of error, plaintiff, Rush, says: (a) that the affidavit is sufficient, and (b) that even if it was not good, the order refusing to quash it was entered more than eight months before this writ of error was issued, and being final cannot now be reviewed; and as to point of error (2) that the verdict was plainly contrary to the law and. evidence.
In view of our conclusions and disposition of the case, it will be unnecessary to pass upon the sufficiency of the affidavit of attachment or whether the order refusing to quash it can be reviewed .on this writ.
First, what does the evidence disclose? We do not find that counsel has made a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely, as required by the rule, when the sufficiency or insufficiency of the evidence to sustain the verdict is relied upon. No finger has pointed out the wheat in the chaff. The duties of this court are numerous and exacting, requiring intensive work day and night including holidays. Thousands of pages are often contained in one record; and if counsel would familiarize themselves with the rules and adhere to them in the presentation of their cases, the arduous labors of the court would be lightened, and weary midnight hours shortened.
The wife, whose affections for her husband are claimed by him to have been partially alienated by defendant, Buckles, was Miss Ellen Turner, the only daughter of George Turner, a substantial and prosperous farmer and real estate dealer of Jefferson county. She married plaintiff, J. P. Rush, in January, 1906. Two children, both girls, were born to them, Anita, fourteen years old at the time of the trial, and Georgine, three years old. They resided in Shepherdstown and at various other places in the near vicinity, at one time in Wilmington, Delaware, where plaintiff was employed in the shipyards. Plaintiff was not very successful in business affairs, and Turner, the father-in-law, had, during all their married life, contributed money for the support of the family and had helped in many ways to aid him in making a living for them. A portion of the time the rent from one of his houses in Shepherdstown was paid to his daughter, Mrs. Rush, to assist her in obtaining clothing for herself and children and for other living expenses. On several occasions Rush and his wife had disagreed, and their nuptial relations had been interrupted thereby to such an extent that she had frequently left home and gone to her father’s house, and on visits to her relatives, staying away from two weeks to a month
It appears that in 1917 Rush obtained employment at Wilmington, Delaware, in the shipyard at that place, but after the armistice returned to Shepherdstown in December, 1918. He had no employment; and having often expressed a desire to engage in farming, had requested his father-in-law, who was fairly wealthy for that locality, to buy a farm for his occupancy and use. Accordingly, Mr. Turner purchased a farm four or five miles from Shepherdstown, paying about $6,000 therefor, for the use and occupancy of Rush and his family, lending him some farming implements and machinery which he, Turner, owned. Rush and family moved onto the farm in the spring of 1919 and lived there until April, 1920. During all this time Mr. and Mrs. Turner assisted them by furnishing money to buy clothing and other necessaries, frequently going out to the farm. and performing manual labor thereon so far as they, were able.
It appears that in April, 1920, the father-in-law was at the farm when an altercation arose between him and Rush over some improvement of the farm, which resulted in vicious words on the part of Rush addressed to the old gentleman, accompanied by a blow from his fist and other personal violence which drew blood from the old. man’s face or ears. Turner was sixty-five years old at the time and crippled with rheumatism. Mrs. Rush, who heard the conversation and witnessed the affray, and who assisted her daughter in rescuing her father from the assault, became highly angry and nervous and then told her husband that “he was a brute and she was going to leave him and never live with him again as long as she lived.” Within an hour she had packed her suit case and left home in the ear of a neighbor, accompanied by her father, taking her small child with her. The older girl, in company with a girl friend, went to school at Shep-herdstown, leaving before the mother. Rush seemed to agree to her departure, and had a horse hitched to a buggy for that purpose, but as above stated she left in the car of a neighbor, and went to her father’s house in Shepherdstown where she staid an hour or two, and from there she took her youngest
Defendant, Buckles, fyad been occupying rooms at the Rumsey hotel for a year or so before Mrs. Rush went there. He was married, but had become estranged from his wife, and at that time owned and operated a garage in Shepherdstown and dealt in automobiles. lie frequently visited Mrs. Rush at her apartments, mostly at night, and on several occasions sent her candy and took her out driving in his automobile, often accompanied by her oldest daughter and other friends. It is in evidence from the lips of the oldest daughter that when other callers would come to the apartment when the defendant Buckles was there, he would frequently secret himself in the closet or under the bed in the adjoining room until their'departure; and at one time when she came to the apartment about 4 o’clock in the afternoon she found the. door locked, and after it was opened Buckles and her mother were in the room. When Mrs. Rush left for the state of Nevada she was accompanied by Buckles, and when they arrived at Winnemueca, a small town in that state, which had been selected by Mrs. Rush as the place to acquire her residence, they registered at the best hotel in their own proper
We have detailed at considerable length the testimony for the reason that the verdict was set aside because the evidence was not sufficient to warrant such finding. The crucial question before the jury was whether defendant either wholly or partially alienated the affections of the plaintiff’s wife, or prevented a reconciliation between them and a resumption of the marital relations. On this question the court correctly propounded the law. The jury were told that if they should Believe from the evidence that plaintiff’s wife had become estranged from him by reason of the altercation between him and her father, and even if they should further believe that her affections for him had not been restored, yet if they believed that defendant, knowing of such estrangement, induced, persuaded or aided in any way in causing the plaintiff’s wife to leave him and go to the state of ^Nevada, either for the purpose of thereafter marrying her or for any other wrongful or unjust purpose; and if they should believe from the evidence that during the time of such estrangement plaintiff was endeavoring to restore his wife’s affections, and if they believed that by attentions and,- acts of devotion to plaintiff’s wife defendant interfered in plaintiff’s efforts to gain his wife’s affections and thereby prevented him from so regaining her affections, they should find for the plaintiff. The jury were further told that the husband is entitled to the association and companionship of his wife so long as the bonds of matrimony continue, and that no stranger has a right to intervene to prevent him from having such companionship and association; that he is entitled to- the companionship and help of his wife in the care, training and
Many cases hold that there may be a recovery for partial alienation of a spouse’s affections. Nichols v. Nichols, 147 Mo. 387, 48 S. W. 947; Fratini v. Caslani, 66 Vt. 273, 29 Atl. 252. In Dallas v. Sellers, 17 Ind. 479, the supreme court of that state said that even if the wife had no affection for her husband the defendant had no right to interfere to cut off 'all chance of its springing up in the future. And in Prettyman v. Williamson (Del.), 39 Atl. 731, it was held that if the wife and husband lived unhappily together before the defendant appeared, and even were much estranged, that would not constitute a bar to the plaintiff’s action, but would go in mitigation of damages. Accord: Miller v. Pearce, (Vt.), 85 Atl. 620. It was held in the Prettyman case in the 12th point of the syllabus: “A husband cannot recover for the alienation of his wife’s affections if the injury was the result of his own cruelty or misconduct, unless it appear that defendant prevented a reconciliation.” It is well settled that if another, by advice or enticement, induces a wife to leave her husband or takes her away without his consent, encourages her to. remain away and prevents communication, between the husband and wife or prevents a reconciliation, he does such at his peril and is liable. Schouler Dom. Rel. 41, and cases cited. Boland v. Stanley (Ark.), 115 S. W. 163. In the last cited case the court held that where 'nothing is said or done to cause a wife to abandon her husband, her act being of her own accord and for reasons best known to herself, there is no cause of action for alienation of her affections. The controlling cause of the loss of the wife’s- affections, either wholly or partially, must be the misconduct of the defendant in order for plaintiff to recover. Rash v. Pratt (Del), 111 Atl. 225. The attempt to alienate must be
It will be seen from the substance of the instructions given' that the court fully and carefully instructed the jury according to the principles above set out. There is ho substantial disagreement between plaintiff and defendant as to the law. But plaintiff insists that the evidence, the substance of which has been detailed, vastly preponderates in favor of a recovery for plaintiff. It is insisted that the evidence- shows that Buckles persistently addressed his attentions to Mrs. Rush for the purpose of preventing a reconciliation and to secure her affections, and the- fact that he accompanied her to Nevada is conclusive that he had such motive or had some ulterior, unlawful purpose. It is argued that if it had not been for the intervention • and attentions of Buckles Mrs. Rush would have returned with her children to her husband; and that his influence over her continued to the time she gave her deposition, and induced false testimony on her part. The credibility of witnesses is peculiarly within the province of the jury. We cannot see that the preponderance of the evidence is with the plaintiff to establish the fact that there was any possibility of reconciliation between plaintiff and his, wife. The only evidence which tends to establish that fact is that of plaintiff himself, supplemented by his visits to his wife at the Rumsey hotel while the suit against he-r father was pending. He says she promised to return to him if the suit was dismissed. She flatly denies it. The preponderance of the evidence, that she never intended to live with him again is on the side of defendant. Her father, who raised her, says that he realized the climax had come when the assault was made. That he pled with her not to leave, but- she had firmly
A new trial should not be granted in a doubtful case where there is conflicting evidence, because the judge, if he had been on the jury would have- found a different verdict. Mays v. Callison, 6 Leigh, 230; Sigler v. Beebe, 44 W. Va. 587; State v. Sullivan, 55 W. Va. 597. The general rule is that where a new trial is asked for on the ground that it .is contrary to the evidence, and it has been denied, the opinion of the trial court is entitled to great respect in the appellate court, which will not grant such new trial only in case of a plain deviation from right and justice. State v. Hunter, 37 W. Va. 744; Gilmer v. Sydenstricker, 42 W. Va. 52. It is well settled that where evidence is conflicting, but it is evident that the verdict is against the clear weight of the evidence, the trial judge should set the verdict aside -and grant a new trial, but always with extreme caution. When this is done-, the opinion of the lower court is entitled to peculiar respect, and the appellate court will not reverse such order unless it is plainly wrong. Martin v. Thayer, 37 W. Va. 38; Robertson v. Harmon, 47 W. Va. 500. We have followed this rule and have accorded due weight to the opinion of the learned trial judge in setting aside this verdict; but a careful inspection of the evidence has led us to the conclusion that-the preponderance is not, with the plaintiff, and the questions of fact upon conflicting testimony being peculiarly within the province of the jury and entitled to superior weight to that
The judgment of the circuit court in setting aside the verdict is reversed; the verdict reinstated, and judgment of nil capiat will be entered thereon in this court.
Reversed; verdict reinstated; judgment entered here.