71 Neb. 186 | Neb. | 1904
Tbis is an action for damages brought by the plaintiff in the court beloAV against the defendant, her brotlier-in-law, for alienating the affections of her husband. The material facts underlying the controversy appear to be that plaintiff’s husband, Oscar Trumbull, was a minor between 19 and 20 years of age at the time of his marriage. That, before the marriage, plaintiff and her husband each resided in the village of Minden, Nebraska. Plaintiff was of the age of 26 years, and had been engaged in the millinery business for several years in the village of Minden. Her husband was working for the defendant, Robert S. Trumbull, his brother and guardian, in Minden, when he became acquainted with plaintiff. In October, 1901, plaintiff removed to the city of Hastings, Nebraska, and was employed as a saleslady in a dry-goods store at that place. Shortly after her removal to Hastings, Oscar Trumbull went there, and married plaintiff at that place on the 14th
“If you find the plaintiff was married to the defendant’s brother; as alleged, and you further find that the defendant had no knowledge Of the fact that they were married, then, if the plaintiff had been unchaste, and the defendant, believing the same, did that or anything which caused his brother to abandon the plaintiff and alienate his affections from her, such fact — that she had been unchaste, and not a fit woman to become a member of defendant’s family — • would not be a defense to plaintiff’s cause of action; but the fact that she was of such character, and the defendant did not know that they were married, should be taken into consideration by you in determining the amount of damages, if any, plaintiff has sustained.”
In vieAv of this instruction, and paragraphs 6 and 8 of the instructions immediately preceding it, the court practically directed the jury to find a verdict for plaintiff, and to only consider the evidence relied upon by defendant in mitigation of damages.
The court evidently regarded the defendant as a mere stranger interfering with the marital relations existing between plaintiff and her husband, and applied to him the most rigid rules ever enforced against intermeddlers in household affairs. In this we think the court erred. The relationship existing between parent and child, and guardian and ward, is of such a character as to warrant the parent or guardian to consult and advise the child or ward, in good faith and with proper motives, even in re
There is a well defined distinction, recognized by the authorities, between the privileges of parents and guardians in their communications with children and wards, with reference to their domestic relations, and that which exists between strangers, particularly those of the opposite sex, in advising in these matters. Where advice is given by a parent or guardian, which leads to a separation by the child or ward from husband or wife, the presumption is that the advice was given in good faith; but, where such advice is given by a stranger, the presumption is otherwise; and, when an action for alienation of affections is brought against a parent or guardian, the gist of the action is the good faith in which the advice is given. Consequently, it is a good defense on the pari; of the parent or guardian to an action of this nature that they advise the child or ward from honest motives, in a sincere belief that the advice given was for the moral and social good of the child or ward. Reed v. Reed, 6 Ind. App. 316; Hutcheson v. Peck, 5 Johns. (N. Y.) *196; Bennett v. Smith, 21 Barb. (N. Y.) 439; Glass v. Bennett, 89 Tenn. 478.
As this case must be reversed for errors in instructions given, we think it might be well to suggest that an amended petition be filed by plaintiff on a new trial, in which the allegations of the original petition that were struck out on motion of the defendant at the former trial are eliminated. This suggestion is made in view of the fact that complaint is made by defendant that the petition, with all the original allegations/was sent to the jury, while deliberating,- with the paragraphs that were excluded simply marked “out” on the margin. Paragraphs of petitions which have been stricken out on motion should not, under any circumstances, be submitted to the inspection of the jury.
We therefore recommend that the judgment of the dis
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and a new trial granted.
Reversed.