Beckwith v. Bailey

• Decision Date: 14 May 1935
• Citation: 119 Fla. 316,161 So. 576
• Court: Florida Supreme Court
• Parties: BECKWITH v. BAILEY.

161 So. 576

119 Fla. 316

BECKWITH v. BAILEY.

Florida Supreme Court, Division A.

May 14, 1935

Error to Circuit Court, Dade County; Uly O. Thompson, Judge.

Action by Harold O. Bailey against J. Holden Beckwith. Judgment for defendant, plaintiff was granted a new trial, and defendant brings error.

Affirmed and remanded, with directions.

COUNSEL

Frank Smathers and Bart A. Riley, both of Miami, for plaintiff in error.

James R. Cooper, of Miami, for defendant in error.

OPINION

DAVIS Justice.

This was an action in damages by Bailey against Beckwith for alienation of affections of and for alleged criminal conversation by defendant with the wife of plaintiff. Upon a verdict for defendant, the trial court granted the plaintiff below a new trial, hence this writ of error.

The declaration contained six counts. Upon demurrer, the third fourth, and sixth counts were stricken, whereas to the three remaining counts the defendant filed 27 pleas. The plaintiff proceeded to trial upon the first, second, and fifth counts of his declaration, after amendment was made to the first count.

The first count alleged in substance that before the commission of the grievances by defendant, plaintiff possessed and enjoyed the love, affection, comfort, fellowship, society aid, and assistance of his wife, Florence; yet defendant knowingly did wrongfully contrive to deprive plaintiff of these things mentioned and to alienate and destroy the affection of Florence for plaintiff; that between June 2 1931, and the commencement of this suit, he caused Florence to file a bill for divorce in Dade county, and by other devices did alienate the affections of Florence and persuaded her to leave the home of and refuse to live or cohabit with plaintiff, whereby plaintiff, due to this loss, has been greatly damaged.

To this count defendant pleaded not guilty; then he denied that plaintiff possessed and enjoyed the love, affection, comfort, fellowship, society, aid, and assistance of Florence, his alleged wife, at the time defendant was alleged to have committed the grievances; he denied all manner of malice in the premises, or that he intended to injure plaintiff, or that he caused Florence to file bill for divorce in Dade county or anywhere else, or that he caused Florence to separate from plaintiff, or that he has damaged plaintiff, but says plaintiff by his own acts caused Florence to lose her love and affection for him.

Count two alleged in substance that defendant contrived and wickedly intended to injure plaintiff by depriving him of the society and assistance of Florence; that between June 2, 1931, and the commencement of this suit did willfully alienate and destroy the affections of Florence, plaintiff in nowise consenting thereto, depriving plaintiff of the society, affection, assistance, and comfort of Florence in domestic affairs, to plaintiff's damage.

To this count defendant pleaded not guilty; then he denied contriving to injure plaintiff by depriving him of the society or assistance of Florence, or that he wickedly intended to injure plaintiff; he denied all manner of malice in the premises; he denied he has injured plaintiff in any respect, or that he caused Florence to separate from plaintiff, but says that plaintiff by his own actions destroyed whatever affection Florence may have had for him.

Count five stated that defendant debauched and carnally knew plaintiff's wife, to plaintiff's damage.

To this count defendant pleaded not guilty; then denied that he damaged plaintiff in any respect; that Florence is the one referred to as plaintiff's wife, and that prior to commission of the acts charged she obtained a divorce a vinculo matrimonii from plaintiff; that the acts charged were done with the knowledge and consent of the plaintiff; that the alleged wife was not the wife of plaintiff.

A trial was had and considerable testimony was introduced. Among other things, a much contested divorce decree granted to Florence Bailey from Harold Bailey in an Idaho court in 1932, dated June 29th, and recorded September 1st, of 1932, was allowed in evidence over the objection of plaintiff.

After the Idaho divorce decree had been admitted in evidence, the jury was instructed by the court to find the facts regarding the validity of the Idaho divorce as follows:

'As to the fifth count which is an entirely separate and distinct cause of action from that charged in counts 1 and 2, and which you are to consider separately, before you can consider whether or not the defendant is guilty as charged therein, you must first find that the decree of divorce obtained by plaintiff's wife is void, or you must find that plaintiff and his wife subsequently remarried in the State of Idaho prior to the marriage of the defendant with the plaintiff's wife. If you find that the decree obtained by plaintiff's wife is a void decree then the marriage of the plaintiff's wife with the defendant is void and of no force and effect. If you find that the decree of divorce in question is not void but that plaintiff and his wife subsequently mutually assumed marital relations and obligations in the State of Idaho and lived and cohabited together as such, and generally held themselves out to the public as man and wife, and this was prior to the marriage of plaintiff's wife with the defendant, then you are instructed that the defendant's marriage with plaintiff's wife is void and of no force and effect.

'In arriving at your findings as to whether the decree of divorce rendered in Idaho is void, you are instructed that the State of Idaho would be without power to render a decree of divorce over any person who is not actually and bona fide domiciled within the borders of that State.

'You are instructed that intent, insofar as it relates to establishing domicile, governs the matter of the acquisition of the domicile. You are instructed that the mere going into a State with the intention of returning when the divorce has been procured, is not in contemplation of law the establishment of a bona fide domicile.

'You are instructed that bodily presence in any state, no matter how long continued, cannot make a change of domicile. The old domicile is not lost nor is the new one gained by mere bodily presence.

'You are instructed that if you find the decree rendered in Idaho in this trial is founded on any presence within the State of Idaho less than bona fide residence or domicile, the decree is worthless and void because given without jurisdiction.

'You are instructed that if you find that the Idaho decree of divorce is valid, and that plaintiff and Florence Vaught did not subsequently assume marital obligations thereafter which was prior to the marriage of the defendant with plaintiff's wife, you must in that event find for the defendant as to count 5; but if you find either the decree of divorce void or that plaintiff and his wife Florence Vaught subsequently to the decree of divorce and prior to the marriage of defendant to plaintiff's wife, mutually assumed marital obligations, held themselves out to the public as man and wife, lived and cohabited together, then in that event you are to find for the plaintiff and are to assess damages against the defendant on count 5 as in your findings you find the plaintiff entitled to.'

The jury, under these instructions, rendered a general verdict of not guilty, applicable to all three counts.

On December 5, 1933, plaintiff made a motion for a new trial on the following grounds which are quoted in substance:

1. The verdict of the jury is against the law as given in the charge of the court.

2. The verdict is against the evidence adduced at the trial and is not supported by the evidence.

3. The verdict does not reach a substantially just conclusion and in rendering said verdict the jury acted through mistake or prejudice.

4. The verdict is contrary to law.

5. The jury should have rendered two separate and distinct verdicts because counts 1 and 2 charged defendant with alienation of affections and count 5 charged criminal conversation involving the validity of a divorce decree received in evidence, and also involving a subsequent remarriage of plaintiff prior to defendant's marriage to plaintiff's wife.

6. A special verdict should have been rendered as to count 5.

7. The trial was had before an illegal jury.

8. The jurors which plaintiff was compelled to accept were taken from three distinct and separate venires.--No venire was drawn for jurors for the week commencing November 27, 1933, and plaintiff was compelled to accept jurors left over from the three venires as aforesaid. That neither plaintiff nor his attorney had any knowledge whatever that the jury list handed him by the clerk of the circuit court was not legally impaneled for jury duty commencing November 27, 1933.

9. The court erred in admitting the decree of divorce granted in Idaho in evidence.

10. The fifth count went to the jury without a joinder having been filed to plaintiff's replication to defendant's pleas filed during the November, 1933, term.

11. The pleas and replications filed during the November term were improperly filed.

12. The court refused to instruct the jury as follows: 'You are instructed that the defendant having moved for a directed verdict thereby admits not only the facts stated in evidence adduced, but also admits every conclusion favorable to plaintiff that you as a jury might fairly and reasonably deduce from the evidence.'

This motion for new trial was granted by court order of March 8, 1934, and it is to this order granting plaintiff a new trial that plaintiff in error prosecutes this writ of error pursuant to section 4615, C. G. L., section 2905, R. G. S.

The questions involved in this appeal are...