Biggs v. Biggs
| Decision Date | 16 November 1925 |
| Docket Number | 11155. |
| Citation | 241 P. 539,78 Colo. 310 |
| Parties | BIGGS et ux. v. BIGGS. |
| Court | Colorado Supreme Court |
Rehearing Denied Dec. 7, 1925.
Department 2.
Error to District Court, Jefferson County; S.W. Johnson, Judge.
Action by Nell S. Biggs against Zachariah H. Biggs and wife. Judgment for plaintiff, and defendants bring error.
Affirmed.
George B. Campbell and James H. Teller, both of Denver, for plaintiffs in error.
Quaintance & Quaintance, of Denver, for defendant in error.
Nell S Biggs had a verdict for $13,000 actual, and $2,000 exemplary damages, and judgment thereon against Zachariah H. and Aurelia N. Biggs, for the alienation of the affections of her husband, their son, William Byron Biggs, and they bring error.
The points made are:
That the verdict for actual damages is not supported by the evidence.
That there is no evidence to support the verdict for exemplary damages.
That irrelevant and immaterial evidence was admitted.
The first point is not well taken. If all the evidence for the plaintiff is believed, the verdict is justified. For example the plaintiff testified that she heard defendant Zachariah Biggs say to his son, 'If you don't get rid of that woman, I will cut you off without a cent.' This was denied, but, if believed by the jury, was strong and lent color and substance to some other evidence otherwise weak. The evidence was strikingly contradictory and conflicting. We cannot say it does not support the verdict.
Upon the second point: If the evidence supports a verdict at all it supports a finding of malice and a wanton and reckless disregard of plaintiff's rights, because malice in this case is necessary to any verdict for plaintiff; it means deliberate intent to wrong (McAllister v. McAllister, 72 Colo. 28, 30, 209 P. 788), and no one could deliberately and wrongfully deprive a woman of her husband's affections without a wanton and reckless disregard of her rights indeed, 'malice' has been defined as a reckless disregard of the rights of others (Morgan v. Durfee, 69 Mo. 469, 33 Am.Rep. 508).
Upon the question of the erroneous admission of evidence: Evidence was admitted that the defendant Mrs. Biggs advised and aided plaintiff in procuring an abortion. It is claimed that this was irrelevant, but it is answered that since a child would have tended to hold the plaintiff and her husband together, and so to defeat an attempt to separate them, the evidence tends to show a part of the execution of a plan to accomplish that purpose. We think that answer good. True, the plaintiff's own testimony shows that she intentionally took the advice, but that does not make the evidence irrelevant. The weight of this evidence is...
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...of the evidence now before us, Smith v. Smith, 192 Mich. 566, 159 N.W. 349; Lanigan v. Lanigan, 222 Mass. 198, 110 N.E. 285; Biggs v. Biggs, 78 Colo. 310, 241 P. 539; v. Renner, 5 N.J. Misc. 411, 136 A. 707; Nelson v. Nelson, supra; Murray v. Murray, 30 N.M. 557, 240 P. 303; Shalit v. Shali......
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...abortion. Opposite conclusions have been reached by the courts on admission of this class of testimony. In the case of Biggs v. Biggs, 78 Colo. 310, 241 P. 539, and the case of Raleigh v. Raleigh (Mo. Sup.) 5 S.W. (2d) 689, all such testimony is admissible on the theory that the birth of a ......
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...deliberation, and deliberation with knowledge amounts to malice. McAllister v. McAllister, 72 Colo. 28, 30, 209 P. 788; Biggs v. Biggs, 78 Colo. 310, 311, 241 P. 539. She in 'utter disregard of consequences.' Cohen v. Fox, 26 Colo.App. 55, 58, 141 P. 504, 505. Therefore we cannot say that t......