Hartpence v. Rogers
| Decision Date | 20 April 1898 |
| Citation | 45 S.W. 650,143 Mo. 623 |
| Parties | Hartpence v. Rogers, Appellant |
| Court | Missouri Supreme Court |
Appeal from Caldwell Circuit Court. -- Hon. E J. Broaddus, Judge.
Affirmed.
Crosby Johnson for appellant.
(1) To constitute a tort there must be a conjunction of damage and wrong, and there is no tort if either damage or wrong is wanting. Cooley on Torts [1 Ed.], 62. (2) The cause of action submitted to the jury involved no element of wrongfulness. To make the enticement of the wife from her husband actionable it must have been done from malice or with improper motives. Rhinehart v. Bills, 82 Mo. 534; Gilchrist v Bale, 34 Am. Dec. 469. (3) The plaintiff was allowed to recover on a different cause of action than that stated in his petition. Reed v. Bott, 100 Mo. 62; Ross v Ross, 81 Mo. 84. (4) There is no presumption of law that one advising a wife to leave her husband acts wrongfully in so advising. State v. Bank, 120 Mo. 161; Page v Dixon, 50 Mo. 43; Klein v. Landman, 29 Mo. 259. (5) The instruction in relation to the credibility of witnesses should not have been given since there was no material conflict of evidence. Henry v. Railroad, 109 Mo. 489; Miller v. Car Co., 130 Mo. 517. (6) An instruction which invades the province of the jury without furnishing aid, or which prescribes a false standard for their guidance, is fatally erroneous. Purdy v. People, 140 Ill. 46; Louisville v. Whitehead, 42 Am. St. 472; State v. Anderson, 19 Mo. 241; State v. Patrick, 107 Mo. 147; Ashland v. Railroad, 57 Mo.App. 148. (7) Instructions calling the attention of jury to veracity of witnesses are not favored. Bank v. Murdock, 62 Mo. 74; White v. Lewenberger, 55 Mo.App. 69. (8) If one party calls the other as a witness he vouches for his credibility. Claflin v. Dodson, 111 Mo. 195; Bensberg v. Harris, 46 Mo.App. 404. (9) The damages be awarded must be such as naturally flow from the wrong complained of. Nicholson v. Rogers, 129 Mo. 136. (10) To justify exemplary damages the act complained of must not only be unlawful, but it must also be malicious, wanton or oppressive. Nicholson v. Rogers, 129 Mo. 136; State v. Jungling, 116 Mo. 162; Nelson v. Wallace, 48 Mo.App. 193. (11) The measure of damages for unlawfully enticing the plaintiff's wife away would be the value of her services and society burdened by his obligation to support, clothe and care for her. Sutherland on Dam., sec. 1285; Rudd v. Rounds, 64 Vt. 432; Davenport v. Hannibal, 108 Mo. 471; Furnish v. Railroad, 102 Mo. 669.
O. J. Chapman for respondent.
(1) A series of instructions, embracing all the issues of the cause, is not objectionable, and the failure to embrace the issues in one instruction in such case is not error, if, as a whole, they are correct. Mulhousen v. Railroad, 91 Mo. 332; Kalse v. Railroad, 55 Mo. 473. (2) Actual estrangement and alienation of the affections constitute the essence of the offense. Rhinehart v. Bills, 82 Mo. 534. (3) Appellant can not complain of instructions which are in harmony with those asked by himself, even though erroneous. Fenwick v. Bowling, 50 Mo.App. 516; Aultman v. Smith, 52 Mo.App. 351; Harrington v. Sedalia, 98 Mo. 583. (4) The husband may sue for loss of affections. Cooley on Torts, 224; Hoard v. Peck, 56 Barb. 202; Heermance v. James, 47 Barb. 120. (5) The injury to plaintiff consists in the alienation of his wife's affections, with malice or improper motives. Debauchery and elopement, when they occur, are only the immediate and legitimate consequences of the wrong. Rhinehart v. Bills, 82 Mo. 534. (6) The husband may bring an action on the case for damage against whomsoever persuades or entices his wife to live separate from him without sufficient cause. Higham v. Vanasdol, 101 Ind. 160; 3 Black. Com. 139; Michael v. Dunkle, 84 Ind. 544; Perry v. Lovejoy, 49 Mich. 529; Holtz v. Dick, 42 Ohio St. 23. (7) Letters written between plaintiff's wife and defendant are competent to show criminal intimacy between them and also to show alienation of the wife's affections. Dalton v. Duegge, 58 N.H. 57. (8) Where the judgment is manifestly for the right party, it should be affirmed, though there may be error in some of the instructions, and although some illegal evidence may have crept into the case. Williams v. Mitchell, 112 Mo. 300; Wolfe v. Dyer, 95 Mo. 545. (9) Where an instruction states the issues and states them "as stated in the petition," it is not erroneous. Britton v. St. Louis, 120 Mo. 437; State v. Scott, 109 Mo. 226. (10) This action differs only in degree from an action for criminal conversation with the wife. In each case it is alienating the affections from her husband and destroying the comfort he enjoyed in her society. Heermance v. James, 47 Barb. 120. (11) Plaintiff's instructions 1, 3 and 4 that defendant complains of are but counterparts of his own instructions 1 and 2, and he can not be heard to complain of error adopted by the trial court at his request. Price v. Breckenridge, 92 Mo. 378; Holmes v. Braidwood, 82 Mo. 610. (12) Supreme Court will not reverse on ground of excessive damages, unless it is so excessive as to induce the belief that the verdict was the result of prejudice, passion or corruption. Shelby v. Railroad, 94 Mo. 574. (13) An instruction to jury "that it might not only allow actual damages, but also such damages as will afford a wholesome example to others in like cases by way of smart money or exemplary damages" was approved in Baldwin v. Fries, 46 Mo.App. 288. (14) Plaintiff's fifth instruction, on credibility, was passed on and approved, in the noted case of State v. Noland, 111 Mo. 473.
This is an action for damages for alienating the affections of plaintiff's wife, and wrongfully causing her to abandon him. The petition further charges that defendant debauched her, but the jury was not required to pass upon that issue. The answer was a general denial.
The errors assigned relate to the action of the court in the admission and exclusion of evidence, the giving and refusal of instructions, and the failure to set aside the verdict because excessive.
Plaintiff's evidence tended to show that he was married August 1, 1889, and that he and his wife lived together happily thereafter, until in the month of December, 1892; that, during all that time, she was kind, dutiful and affectionate, and that he treated her with all the consideration and kindness of a devoted husband. The father and mother of plaintiff's wife were residing with defendant upon his farm, having gone there in November, 1892. The parties were in no manner related to each other. Defendant had no family and they were living with him to help upon the farm and to keep house for him. The plaintiff and his wife in December, 1892, moved into the dwelling where defendant and the father and mother of plaintiff's wife were living, as above stated. The plaintiff went there to assist his father-in-law in work upon the farm. Defendant was a large landowner, and reputed to be a man of wealth. He began, within a week or two after the arrival of plaintiff's wife, to show her marked attention. He soon boldly protested his love for her, made her presents, and stated that he intended to get a piano for her. He put a diamond ring upon her finger, and let her have it to wear. He advised her to get a divorce from plaintiff, and suggested that she go to Dakota for that purpose. He offered to go with her and said that they could assume to be brother and sister. The wife began to treat her husband with coolness and to manifest a preference for defendant's society. She laid aside her wedding ring for the more beautiful one which defendant was able to furnish her to wear. She declined to accede to her husband's request to leave the farm and go to another location with him. The husband, after six or seven weeks spent upon defendant's place, determined, under the circumstances mentioned, to leave. His wife at first asked him to stay. Defendant told her to "let her husband go if he wanted to; that he (defendant) could take better care of her than" her husband. Then she ceased to ask him to remain. The proof showed that defendant said at one time, the sooner he could get rid of plaintiff, the quicker he could have plaintiff's wife. Upon several occasions, during his temporary absence from home, defendant wrote most affectionate letters to Mrs. Hartpence. The husband, in the latter part of January, 1893, left defendant's farm. The wife refused to go, and remained there with her father and mother. They stayed some ten months longer, and then left. Plaintiff obtained a divorce from his wife. They never lived together after January, 1893.
Without setting out any more of plaintiff's evidence, it is sufficient to say, that the testimony upon his part tended to show a systematic and constant effort by defendant to win the affections of plaintiff's wife, to break the ties between her and her husband, and cause her to abandon him. The defendant introduced only one witness, who was called simply for the purpose of testifying to statements alleged to have been made by plaintiff's mother-in-law (who was a witness for him) contradictory of the evidence given by her upon the stand. Defendant was called by plaintiff and identified as in his handwriting, some of the amorous and tell-tale letters written by him. He did not deny any of the damaging statements concerning his conduct and conversations testified to by plaintiff's witnesses, but remained entirely silent upon that subject. In fact his actions might well be said to be convincing evidence of the truth of what had been stated.
1. The first question that arises is the correctness of the court's ruling upon the competency of...
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