68 Neb. 21 | Neb. | 1903
This action was brought by Ellen Mannix to recover from Mrs. Sickler damages sustained for alienating the affections of her husband, W. W. Mannix. A trial resulted in a verdict for the plaintiff below for $10,000. The court ordered á remittitur of $7,000, to which.the plaintiff submitted, and judgment was entered in her favor for $3,000, from which the defendant below has taken error.
It is insisted that the petition does not state a cause of action against the defendant, in that it fails to charge that the plaintiff in error was actuated by malicious motives in alienating the affections of the plaintiff’s husband. Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397, is one of the authorities relied on by the plaintiff in error in support of this contention. In that case the defendant requested a charge that “to entitle the plaintiff to recover the defendant must have maliciously caused the separation of the husband and wife.” Relating to this, the court said (p. 634): “This charge ought to have been given. The term malice, as applied to torts, does not necessarily mean that which must proceed from a spiteful, malignant, or revengeful disposition, but a conduct injurious to another, though proceeding from an ill-regulated mind, not sufficiently cautious before it occasions an injury to another. Weckerly v. Geyer, 11 Serg. & R. 39, 40. If the conduct of the defendant was unjustifiable and actually caused the injury complained of by the plaintiff, which was a question for the jury, malice in law would be implied from such conduct, and the court should have so charged.” This, we think, is the trend of all the decisions on the question, and a petition which charges that the defendant “wrongfully, wickedly and unlawfully sought and courted the society of plaintiff’s husband,” as does the one under consideration, sufficiently charges that it was maliciously done.
It is not controverted that after the commencement of this action and before the trial was had, W. W. Mannix, the husband, obtained a divorce from Ellen Mannix, the defendant in error. The decree was entéred in the circuit court of Fall River county, South Dakota, after a trial at
It is further insisted that the evidence does úot support the verdict. That there was sufficient evidence for the jury to act on, no. unprejudiced person who reads the testimony can deny. We do not care to review it here, or to take time to analyze the explanations attempted to be made of the conduct and actions of the plaintiff in error. A woman who was seeking to avoid the society' of Mannix would not be found habitually living in the towns and at the same hotels where he from time to time took up his abode, or if, as is said, she took up her residence in these various towns because of her wish to be with her brother, he, or both together, could undoubtedly have found some way to rid her.of an unwelcome association, if such it really was.
We recommend the affirmance of the judgment of the district court.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.