Allen v. Forsythe

• Decision Date: 09 January 1912
• Citation: 160 Mo. App. 262,142 S.W. 820
• Parties: ALLEN v. FORSYTHE et al.
• Court: Missouri Court of Appeals

142 S.W. 820

160 Mo. App. 262

ALLEN v. FORSYTHE et al.

Kansas City Court of Appeals. Missouri.

January 9, 1912.

1. HUSBAND AND WIFE (§ 324)—ALIENATION OF AFFECTIONS—RIGHTS OF PARENTS.

While a parent may interfere in the marital relations of his daughter when honestly and properly concerned for her welfare so long as parental love is his impelling motive, he may not alienate the affections of his daughter from her husband because of malice or selfishness without committing an actionable wrong.

2. HUSBAND AND WIFE (§ 324)—ALIENATION OF AFFECTIONS—HUSBAND'S RIGHT TO SUE.

A husband may recover damages against any who persuade his wife to live separate from him without sufficient cause or against such as take her away either by fraud, persuasion, or open violence, whether the wrongdoer be the father of the wife or any other person.

3. CONSPIRACY (§ 20)—ALIENATION OF AFFECTIONS—EVIDENCE.

Evidence held to warrant a finding that defendants, merely to gratify their evil passions, conspired together and induced plaintiff's wife

to refuse to live with him and alienated her affections.

4. CONSPIRACY (§ 19) — CIRCUMSTANTIAL EVIDENCE.

Circumstantial evidence is competent to prove a conspiracy as well in a civil as in a criminal case.

5. TORTS (§ 26) — JOINT TORT-FEASORS — FAILURE OF PROOF AS TO ONE.

Where several defendants were charged as joint tort-feasors in alienating the affections of plaintiff's wife, the failure of proof as to one of them did not preclude plaintiff's recovery against the others.

6. APPEAL AND ERROR (§ 105)—REVIEW— PREJUDICE.

Error in the admission of evidence on an issue amply proved by other competent evidence is not prejudicial.

7. HUSBAND AND WIFE (§ 333)—ALIENATION OF AFFECTION—ADMISSIBILITY—HEARSAY.

In an action for alienation of the affections of plaintiff's wife, evidence of statements made by the wife to witnesses other than defendants, and not in the presence of any of them, was not objectionable as hearsay, but was admissible to show the feelings and mental condition of the wife and her reason for failing to perform her part of the marriage contract.

8. APPEAL AND ERROR (§ 840)—REVIEW—INSTRUCTIONS.

An appellate court may refuse to examine errors assigned on the court's rulings on requests for unnecessarily voluminous instructions.

9. HUSBAND AND WIFE (§ 334)—ALIENATION OF AFFECTIONS—DAMAGES.

In an action for alienation of the affections of plaintiff's wife, a verdict awarding $6,000 compensatory damages held, on the evidence, excessive, and reduced to $4,000.

Appeal from Circuit Court, Carroll County; Francis A. Trimble, Judge.

Action by Ernest A. Allen against William Forsythe and others. Judgment for plaintiff against all the defendants except Arthur Forsythe, and they appeal. Affirmed on condition.

L. H. Waters, Frank Sheetz, and Jones & Conkling, for appellants. Lozier, Morris & Atwood, for respondent.

JOHNSON, J.

This is a suit for damages for the alienation of the affections of the wife of plaintiff. Defendant William Forsythe is the father of plaintiff's wife, defendants Warren Forsythe and Rena Herndon are her brother and sister, and defendant Benjamin Herndon is the husband of Rena. Arthur Forsythe, another brother of plaintiff's wife, also was joined with the defendants; but at the conclusion of the evidence his request for a peremptory instruction was sustained, and he was dismissed. The cause was submitted as to the remaining defendants, and the jury returned a verdict against them in favor of plaintiff for compensatory damages in the sum of $6,000. Defendants moved for a new trial and in arrest of judgment, and after their motions were overruled appealed to this court. One of their principal contentions is that their demurrers to the evidence should have been given, and we shall state and consider the facts in their aspect most favorable to plaintiff, as we must in passing on a demurrer to the evidence.

The abstract of the record contains over 700 pages of evidence. The examination of the principal actors in the domestic tragedy was voluminous and searching. The events which gave rise to the legal controversy appear to have been of absorbing public interest in the community where they occurred, and many strangers to this suit were drawn into their vortex and were called as witnesses by one side or the other. Consequently the evidence embraces a vast mass of details of more or less evidentiary value and abounds in warmly contested minor issues; but the controlling facts of the case are comparatively few and really are undisputed, though, on the surface, they appear to be vigorously contested. We shall avoid the circumstantial labyrinth through which counsel vainly travel in their briefs and arguments and shall state the facts in our own narrative and without reference to details or to any but ultimate facts.

The Allen and Forsythe families were neighbors and friends, and the plaintiff, Ernest Allen, was a young man of high standing, exemplary habits, and able to support a wife in a manner suitable to the station in life of the respective families. He was the accepted suitor of Verline, the youngest daughter of William Forsythe, and both families gave the proposed marriage their unqualified approval. The young woman was over 18 years of age, and therefore capable in law of making her own marital contracts; but she was a dutiful daughter and had the consent of her parents to the marriage. It was a love match, the parties were of equal worth, and there is no ground for the belief that the young man was moved to seek the alliance by sordid motives or by any other impulse than natural affection. Twice the wedding had been postponed on account of the illness of Verline's mother, who was confined to her bed by rheumatism. Some time before the important events to which we shall refer, William Forsythe, his bedridden wife, and Verline had moved from their farm to the nearby town of Tina to live with the Herndons. The defendant Rena Herndon is an elder sister of Verline, and her husband was the owner of a livery business in Tina. The two families lived together as one, and Rena, whom the evidence describes as a woman of positive disposition, dominated, to a great extent, the more plastic mind of her young sister. The prime object of the family in postponing the marriage was to retain the services of Verline, but as an additional reason it was urged that the excitement of a wedding would have an injurious effect on the mother, and that it should not occur until her health improved sufficiently for her to bear the excitement without danger of injury. The young couple were anxious to be married, and both chafed under their disappointments.

One day Verline accompanied the Herndons on a shopping trip to Carrollton. Ernest became a member of the party by invitation, and at Carrollton went with Verline to a dentist's office, where she had some dental work done. The Herndons went about their affairs, and the young couple, left to themselves, quickly agreed to be secretly married that day. The evidence, as a whole, negatives the thought that Ernest overpersuaded his bride. One was as willing as the other and out of consideration for the bride's mother, to whom a sudden announcement of the marriage might be injurious, they agreed to keep the fact secret until the following Sunday (this was Thursday). They procured a license, engaged a clergyman, and went to a hotel where they were married. They enjoined secrecy on those who participated in the event, and then sought the Herndons and returned home that afternoon. They separated at Tina; Verline going to her home and Ernest to his. The next day Verline encountered an inquisitive woman, who, under pretense of knowing more than she did know, extracted the secret from the less acute girl, who assumed that her husband had disclosed it. He had told his father and one or two intimate friends the news in strictest confidence. The woman, however, had not received knowledge of the secret from this indiscretion, but shot an arrow at random and accidentally hit the mark. Verline returned to the bedside of her mother and told her of the marriage. The mother responded with an outburst of grief. Her crying and sobbing first attracted the attention of Rena, who, as...