Barton v. Barton

• Decision Date: 22 May 1906
• Parties: BARTON v. BARTON et al.
• Court: Missouri Court of Appeals

94 S.W. 574

119 Mo. App. 507

BARTON v. BARTON et al.

St. Louis Court of Appeals. Missouri.

May 22, 1906.

1. HUSBAND AND WIFE—CAUSING ABANDONMENT—EVIDENCE.

Evidence in an action against the mother and sister of plaintiff's husband for causing him to abandon her held sufficient to sustain findings that they caused the abandonment, and did it maliciously; that is, intentionally, and without just cause or excuse.

2. SAME — JUSTIFICATION AND EXCUSE—CONSPIRACY.

Where the mother and sister of plaintiff's husband are sued jointly, the petition charging conspiracy to bring about a separation of plaintiff and her husband, the existence of anything which justified the mother in bringing about the separation will excuse the sister's help.

3. SAME—JOINT TORT.

That persons who have caused one to leave his wife may be jointly liable therefor they must have co-operated; intention being an essential of the tort.

4. SAME—RIGHT OF PARENT.

The right of a mother to advise her son to leave his wife without being liable therefor does not depend on the wife requesting the mother to advise in his domestic affairs.

5. SAME.

Circumstances will excuse a parent for advising a son regarding his domestic affairs and influencing a separation from his wife, especially when he is a minor, which will not excuse like interference by another.

6. TRIAL—INSTRUCTIONS.

Where, in an action for inducing one to abandon his wife, defendants do not suggest as a defense that one may lawfully persuade a husband to leave his wife because he was mistreating her, and she had grounds for divorce from him, though she was still willing to live with him, it is confusing and prejudicial to them to charge that the contrary is the law.

Bland, P. J., dissenting.

Appeal from Louisiana Court of Common Pleas; David H. Eby, Judge.

Action by Jewel Barton against Eva Barton and others. Judgment for plaintiff. Defendants appeal. Reversed and remanded.

Plaintiff, Jewel Barton, is the wife of Earl Barton, to whom she was married on August 27, 1903, when her husband was 19 years old and she 18. They lived together until September, 1904, since which time they have been apart. The defendant Eva Barton is the mother of Earl Barton and mother-in-law of plaintiff. Defendant Gladys Burkhart is the married daughter of Mrs. Barton, sister of Earl and sister-in-law of plaintiff. E. C. Burkhart is the husband of Gladys Burkhart. The Burkharts have resided in Hannibal since their marriage. During the period when most of the occurrences to be related transpired, Mrs. Barton lived in Louisiana, Mo., and kept a boarding house at the corner of Tenth and Georgia streets. She had previously lived in Rockport, Ill., and had relatives there and in other places in the vicinity. During the period plaintiff and her husband were living together, and shortly after their marriage, Mrs. Barton resided temporarily at Summer Hill, Ill., and at the time when the marriage of her son and plaintiff occurred was living at Lonoke, Ark., whither her husband had removed with the family a year or two before on a business venture. He died there, leaving Mrs. Barton a widow with three children. These children were Earl, plaintiff's husband, another son named Henry, and Gladys. After the death of Mr. Barton, which happened August 8, 1903, Mrs. Barton, with Gladys and Henry, returned to Illinois, but Earl remained in Arkansas. Plaintiff and Earl Barton married at Brinkley, Ark., August 27, 1903, or less than three weeks after the death of Mr. Barton. The marriage occurred after an acquaintance of about three months. Plaintiff's parents knew nothing of it, and, as we understand, the couple eloped. However, it was not shown that either of the families raised any objection. After their marriage the youthful pair returned to Lonoke. Earl Barton appears to have been a wayward boy, little inclined to industry and much inclined to dissipation. He was of intemperate habits. In October, 1903, he and his wife visited Mrs. Barton at her home in Rockport, and remained there until the latter part of the ensuing December. Plaintiff was well received by her mother-in-law and family, and by her own admission was treated with perfect kindness, though the pleasure of the visit was marred somewhat by spells of hysterical weeping in which she indulged without apparent cause. During those spells Mrs. Barton consoled plaintiff as best she could, and endeavored to adminster physical comfort by bathing her head and putting wet cloths on it. On one occasion during the visit plaintiff went out into the yard, sat on the ground for two or three hours, and would not come in the house. There was some friction between her and her husband on account of this sort of conduct. Plaintiff would object and give way to weeping every time her husband left the place. On one occasion he was so provoked by her that he went to stay with an aunt. Mrs. Barton telephoned him, and insisted on his coming back. Her intercession induced him to do so. Plaintiff swore that when this visit was over she returned to Arkansas "with the utmost good feeling existing between her and Mrs. Barton." We gather from the record that Earl Barton had some money as the proceeds of an insurance policy, which, he being a minor, his mother had charge of as his guardian and curator. Whatever means of livelihood Earl Barton and his wife had while they lived together was advanced by Mrs. Barton, who bought them their household furniture, and set him up at Lonoke in the grain and feed business. This happened in March, 1904. Plaintiff and her husband first occupied living apartments in the second story of the building in which his store was, not directly above the store, but towards the rear of the building. Plaintiff, becoming dissatisfied with this arrangement, went to live with her mother in Lonoke, and Earl went to the hotel. While they were living in the second story of the building above mentioned, plaintiff gave way to crying so much that a merchant whose place of business was beneath went to her rooms and expostulated, telling her she disturbed people on the street. She replied she would cry as loud as she pleased and when she pleased. Mrs. Barton visited her son and daughter-in-law at Lonoke in March, 1904, and during her visit they again resumed living above the store. Mrs. Barton stayed with them there some, and incidentally paid the board bill the pair had incurred at a hotel. Mrs. Barton remained in Arkansas on that visit a week, and then returned to Illinois. When she left, her son was staying at the hotel instead of with his wife. Plaintiff complained to Mrs. Barton about living in an upstairs room, saying she wanted to live "in a house on the ground." Mrs. Barton offered to rent a dwelling in Lonoke for plaintiff and her husband if they would live together, but Earl said, in plaintiff's hearing, that it was no use; that he had tried it, and could not stand it. Then Mrs. Barton invited them to come to Illinois and live with her. They came in June and remained two weeks. Mrs. Barton was keeping boarders at the time. During this visit plaintiff had a crying spell and a doctor had to be called. She insisted on getting up in the night and going down town. The only cause assigned in the testimony for these weeping moods is that plaintiff would cry whenever her husband left the house. She said herself regarding them, she did not want him to go down town because he would drink and go where he had no business; that she "wanted him to stay at home and be somebody." Her crying was not silent weeping, but was accompanied by screams which would arrest the attention of people in the street, and cause them to stop and listen. Mrs. Barton always tried to console plaintiff, though the latter's behavior distressed her, made her nervous, and menaced her business. Plaintiff had a spell of this kind once when attending a ball game during the visit to her mother-in-law in Illinois. Earl wanted his wife to stay in Illinois, instead of returning to Arkansas, but she took a notion to go back, and screamed and made scenes, until Mrs. Barton told Earl he would have to go with her, and she (his mother) could not stand the worry she was under. The two went back to Lonoke, but Earl soon returned to Illinois, and stayed until he was telegraphed to come again to his wife. His mother gave him the money to defray the expense of the trip. Shortly afterwards Mrs. Barton moved to Louisiana, Mo., and opened a boarding house. Plaintiff and her husband both desired to go to Missouri and live with her. Plaintiff herself swore to this fact. Mrs. Barton objected to their coming on account of plaintiff's scene-making propensity and discontented disposition. Mrs. Barton said she knew plaintiff would not be satisfied for a month, and then would want to go back to Arkansas, which would entail extra expense. However, she sent the money to enable plaintiff and Earl to come to her, and they arrived September 17, 1904. According to plaintiff's own testimony they were well received; Mrs. Barton seemed glad to see them, and had prepared a room for them to occupy. Gladys Burkhart had been married the day before, and gone to Hannibal to reside. The second night after their arrival plaintiff cried and screamed so loudly that some of the boarders in the house told her she was disturbing the neighbors. For the space of seven or eight days after their return on the 17th plaintiff frequently indulged in similar hysterical spells of weeping and screaming through the halls of the house, sometimes following her husband to the street as he started down town. Her conduct excited protests from the boarders and persons living in the neighborhood. While on the witness stand plaintiff admitted these weeping spells, stated that she said she would cry when she pleased and as loud as she pleased; that she knew her conduct was humiliating to her relatives, particularly Mrs. Barton, who told her she was subjecting her (Mrs....