Beckler v. Yates

• Decision Date: 04 January 1936
• Docket Number: 32571
• Citation: 89 S.W.2d 650,338 Mo. 208
• Parties: George W. Beckler v. Ben A. Yates and Walter M. Reed, Appellants
• Court: Missouri Supreme Court

89 S.W.2d 650

338 Mo. 208

George W. Beckler v. Ben A. Yates and Walter M. Reed, Appellants

No. 32571

Supreme Court of Missouri

January 4, 1936

Respondent's Motion for Rehearing Overruled January 4 1936.

Appeal from Linn Circuit Court; Hon. Paul Van Osdol, Judge.

Reversed.

Scott J. Miller and Roger S. Miller for appellants.

(1) "Did wrongfully, wickedly and maliciously work in concert; plan, scheme and co-operate together with the intended purpose, to injure plaintiff and deprive him of the society, comfort and assistance of his said wife, Helen, and to alienate and destroy her affections for him." This constitutes a conspiracy alleged against the defendants and a conspiracy must be proven. 12 C. J. 540; 12 C. J. 385; Green v. Edmunds, 245 S.W. 378. (2) In a suit against joint conspirators the failure to prove that any one of the defendants was a conspirator entitles him to the sustaining of a demurrer at the close of plaintiff's case. Allen v. Forsythe, 160 Mo.App. 262. (3) And a failure to prove by clear and convincing testimony the connection in the conspiracy of one of the defendants, when only two are charged, dismisses the whole case against both defendants, as there can be no conspiracy for less than two defendants. Allen v. Forsythe, 160 Mo.App. 262; Green v. Edmunds, 245 S.W. 378. (4) Plaintiff's evidence and petition charges that a conspiracy was formed and that the defendant Yates conspired with the defendant Reed, only two defendants, to do an unlawful act. This must be proven by clear and convincing testimony, and the special demurrer of defendant Yates should have been sustained. Green v. Edmunds, 245 S.W. 378; Allen v. Forsythe, 160 Mo.App. 262. (5) There was a complete failure of proof as to defendant Yates. Walsh v. Walsh, 285 Mo. 205. (6) The main instruction in the case, or Instruction 1, given on the part of the plaintiff is error because it sought to cover the whole case and did not take into consideration the defendant, Yates,' defense in the case and was not cured in giving any other instruction, and is in conflict with the instructions given on the part of the defendants. Minteer, Williams & Minteer v. Jenkins, 206 Mo.App. 642; Clark v. Hammerle, 27 Mo. 71; Wingfield v. Railroad, 257 Mo. 347; Mead v. Brotherton, 30 Mo. 201; Sawyer v. Ry. Co., 37 Mo. 263; Fitzgerald v. Hayward, 50 Mo. 523; Owens v. Rys., 95 Mo. 181, 291 Mo. 235; State ex rel. v. Ellison, 272 Mo. 582; Jaquity v. Plumb, Inc., 254 S.W. 93; Blackwell v. Railroad Co., 52 S.W.2d 817. (7) The petition of plaintiff upon which the case was tried declared upon a conspiracy and directly charged the two defendants as conspirators and the defendant, Ben A. Yates, as the father of plaintiff's wife and Instruction 1 fails to cover this phase of the case and is error because the rule as to the defendant, Ben A. Yates, the father, is not in consonant with the rule of mere strangers to an action of this kind. Cooley on Torts; Pollock v. Pollock, 29 N.Y.S. 27; Bennett v. Smith, 21 Barb. 439.

Taylor & Taylor for respondent.

(1) Plaintiff's evidence tends to prove that Ben A. Yates and Walter M. Reed joined together in a conspiracy to alienate the affections of plaintiff's wife and to cause her to divorce plaintiff. The evidence plainly shows that defendants accomplished the purpose of their conspiracy. Conspiracy need not be proved by direct evidence. The court has said that "direct evidence is, however, not indispensable. Circumstantial evidence is competent to prove conspiracy from the very nature of the case and the rule which admits this class of evidence applies equally in civil and criminal cases." Meier v. Butcher, 197 Mo. 91, 6 L. R. A. (N. S.) 202; Gott v. Dennis, 296 Mo. 85, 246 S.W. 218; Roberts v. Bartlett, 190 Mo. 700; Allen v. Forsythe, 160 Mo.App. 269; Fowler v. Fowler, 2 S.W.2d 710. Although fraud or conspiracy cannot be predicated on mere conjecture, very slight circumstances may warrant submission to the jury. Green v. Edmonds, 245 S.W. 378. (2) For a full discussion as to the necessity for plaintiff to prove conspiracy as pleaded see the 36 University of Missouri Bulletin, 18, 50 Law Series, p. 60; Huot v. Wise, 27 Minn. 68, 6 N.W. 425; Huling v. Huling, 32 Ill.App. 519; Heisler v. Heisler, 151 Iowa 503, 131 N.W. 676; Smith v. Smith, 42 S.D. 205, 173 N.W. 843; Hutchins v. Hutchins, 7 Hill, 104; Laverty v. Vanartsdale, 65 Pa. 507. (3) Appellate court determining sufficiency of evidence will consider only that favorable to appellee. Appellate court in action at law merely determines whether verdict is supported by substantial evidence. If there was substantial evidence before the jury as to the issues involved, a question of fact was raised which was for their determination solely, and the verdict should not be disturbed on appeal regardless of the conflict in plaintiff's and defendants' evidence. Craig v. Rhodes, 298 S.W. 756; Moll v. Pollack, 8 S.W.2d 43; Munday v. Knox, 9 S.W.2d 960; Raleigh v. Raleigh, 5 S.W.2d 696.

OPINION

Tipton, P. J.

The respondent, George W. Beckler, sued the appellant, Ben A. Yates, and the defendant, Walter M. Reed, for damages for alienating the affection of respondent's wife. He recovered a judgment for $ 15,000 against both Yates and Reed. Only the appellant, Yates, has appealed from that judgment.

Appellant contends that his instruction in the nature of a demurrer offered at the close of all the evidence should have been given. In determining the sufficiency of the evidence, we will state only the facts most favorable to respondent.

On July 4, 1924, the respondent married the daughter of the appellant. Her name was Helen. Both had been previously married. Respondent had two children by a former marriage. He had for many years been connected with the Chillicothe Business College. In 1925, there was a fire at this college, and many student tuition notes that were in the school safe had been burned or charred. The school employed defendant Reed to make photostatic copies of these notes. He was a Burns detective. In order that this work be done in a quiet place, the respondent took the records of the school to his home on Calhoun Street, in Chillicothe, and put Reed in charge of the work. The wife of respondent objected to this work being done at their home. This work was done during the summer of 1925. The evidence showed that while working at respondent's home, the defendant Reed, was in many ways more or less familiar with respondent's wife. For instance, when he would go to the kitchen for a drink of water he would be friendly with her and on one occasion, in the presence of respondent, he stated he did not see why a woman as good looking as she should have married the respondent, then he caressed her.

In the spring of 1926, the respondent, his wife and the defendant Reed drove to Trenton, Missouri, and while there went to a shoe store run by respondent's son-in-law and while the respondent was absent Reed became familiar with Mrs. Beckler, "patted her on the bottom" and kissed her. This incident was told to the respondent by his son-in-law. Notwithstanding this information and other evidence of friendliness exhibited by defendant Reed, the respondent testified that he did not lose confidence in his wife until he discovered a series of letters written by Reed shortly before he and his wife separated. The first letter was written by Reed in February, 1926, and these letters continued until May, 1930. The earlier letters were addressed to both respondent and his wife, while the later ones were addressed to her. There is no evidence that she ever answered any of them, but in many of them he did give an address as to where he could receive an answer.

At the time of the marriage of respondent, Yates lived at Pattonsburg, Missouri, and continued to live there until about February, 1929, when he went to live with his daughter and the respondent at Chillicothe. In the summer of 1928, the appellant's wife died. For several weeks prior to her death respondent's wife was at the home of her parents helping take care of her mother. After her mother's death she stayed with her father until after he sold his home and store. Nearly every week end the respondent went to Pattonsburg and visited his wife. There is no evidence that the appellant Yates objected to these visits. However, the respondent testified that the appellant did object to his daughter returning to her home with respondent. Appellant stated that he needed her and did not want her to leave him. On one occasion the respondent testified that appellant said he was going to keep Helen and after he sold his business he and Helen were going to California and if they liked it out there they were going to stay. Respondent also testified that after this conversation he and his wife went into a bedroom and a short time thereafter the appellant came in and found his daughter crying and he asked her the reason and she said, "You know what's the matter, you separated me and Gib (her first husband) and now you are going to separate me and George."

As previously stated the appellant and his daughter came to Chillicothe and lived with the respondent from February 1929, until respondent and his wife separated in July, 1930. The fact that the appellant came to live with respondent and his wife was satisfactory to the respondent. In fact, the record shows that the respondent testified that appellant came to live with them soon after he sold his house and store in Pattonsburg that "they lived happily together and the having of Mr. Yates in the home was very satisfactory to plaintiff and that the plaintiff had no trouble whatever with his wife or no disputes of any amount, but did have some disquieting arguments as plaintiff states usually happened to married...