Boland v. Stanley

• Decision Date: 04 January 1909
• Citation: 115 S.W. 163,88 Ark. 562
• Parties: BOLAND v. STANLEY
• Court: Arkansas Supreme Court

115 S.W. 163

88 Ark. 562

BOLAND v. STANLEY

Supreme Court of Arkansas

January 4, 1909

Appeal from Little River Circuit Court; James S. Steel, Judge reversed as to one of appellants.

STATEMENT bye THE COURT.

The appellee sued appellants, J. T. Boland and W. H. Robinson alleging: "That Era Stanley is and at all the times hereinafter mentioned was the wife of this plaintiff. That on or about the 7th day of November, 1906, while the plaintiff was living, cohabiting with and supporting her at Winthrop and while they were living together happily as man and wife the defendants, wrongfully contriving and intending to injure the plaintiff and to deprive him of her comfort, society and assistance, maliciously, wilfully and wickedly induced her away from the plaintiff's and her then residence in the town of Winthrop in Little River County, Arkansas, and, after so inducing her away from her and plaintiff's residence forcibly seized her and by force carried her to the residence of the defendant, J. T. Boland, in Little River County, and have ever since said date forcibly detained plaintiff's said wife and harbored her against the consent of this plaintiff and have alienated the affection of plaintiff's said wife from him and caused her to become dissatisfied with her married state. That by reason of said acts the plaintiff has been and still is wrongfully deprived by the defendants of the comfort, society and aid of his said wife, and has suffered great distress of both mind and body in consequence thereof and great discomfort, inconvenience and anxiety, and will continue to so suffer, all to his damage in the sum of $ 10,000. And the plaintiff says that by reason of said wilful, malicious and wicked acts this plaintiff is entitled to $ 10,000 as exemplary or punitive damages against said defendant."

The answer of appellant denied all the material allegations of the complaint, and set up that plaintiff's wife of her own free will and accord left plaintiff on the 7th day of November, 1906, and came to her father's house, J. T. Boland, where she has since resided and made her home, and that no one has persuaded her or induced plaintiff's wife to live separate and apart from him, and that no one has alienated or attempted to alienate her affections from him.

The evidence on behalf of appellee tended to show that appellee on the 4th of November, 1906, married Era Boland, the daughter of appellant, J. T. Boland. Appellee married at his father's house about 11 o'clock Sunday night. He remained with his wife at his father's house for a few days. The next day after the marriage he and his wife went to the house of one Grider, a neighbor. While there, appellant Boland came and said to his daughter: "Era, I have come to bring you a letter from your dear old father, the last one you will ever get from him. You are laughing on one side of your face today, but you will be laughing on the other side tomorrow." He gave the letter to his daughter, and said to appellee: "Young man, don't say anything to me; don't say a word. I could eat three like you before night." He remained about five minutes. After he left appellee read the letter. Its contents were as follows: "Era, you have played hell with your ducks--you are laughing on one side of our face today, but you will be laughing on the other side tomorrow. I don't want you to ever come inside of my yard again, not even in sickness or death. Don't you ever speak to your sisters or your brothers again. You have disgraced yourself, and you are no more your father's child."

The day after the marriage appellant Robinson went to a near neighbor of Boland, and asked him what he thought of Era's marriage, and said something about Miss Era disgracing herself by taking Stanley. He said Mr. Boland would try to get her back, and that he was going to do all he could to help him. Robinson often went to Boland's house. They were musicians, and made music together. Robinson was at Boland's house Tuesday night after the marriage. Wednesday morning he went back to Boland's. Robinson and Boland's wife, oldest daughter and little boy went in Boland's wagon over to Stanley's, where appellee lived. Boland was at home when they left to go to Stanley's, and he was there when they returned. When they reached Stanley's, they stopped the wagon at the gate about fifty yards from his house. Robinson went into the house, and told appellee's wife that her mother was out there and wanted to see her. Mrs. Stanley went out to the wagon and talked to her mother and sister and Mr. Robinson. Then they carried her back into the house. Robinson had her by one arm and her sister by the other. Robinson was holding her up. When she got into the house, she lay on the bed crying. Her mother and sister gathered up her things in the house. Then Robinson raised her up off the bed and took her off. They took her by the arms and led her out to the wagon. She got in the wagon. When Robinson took her up to carry her to the wagon, she did not resist in any way or act like she did not want to go. She sat on the back seat in the wagon between her mother and sister. The little brother and Robinson sat on the front seat, and drove the wagon. Just as the wagon was leaving, Stanley came up. They met him fifteen or twenty steps from the gate. As they drove away, Stanley's wife hallooed back to him, and said she was going home to get her things.

A witness who saw them pass the house in the wagon going towards Boland's stated that Mrs. Stanley looked like she had been crying, that her appearance, conduct and words indicated that she was sad and dejected. The appellee testified that his wife lived with him from Sunday night when they were married till Wednesday when they came and took her away; that she seemed to be as happy as she could be. She was that way Wednesday morning when he left the home for his work making ties. They had talked about keeping house on Tuesday night, and the next day he was going to get a housekeeping outfit and move to themselves. He returned from his work Wednesday morning between eleven and twelve o'clock and saw, as he came up, his wife going off in the wagon with Robinson and the Boland folks. He understood from what she said to him as they drove off that she was going home after her things. When he went into the house, he found that the few things she had there were gone. Then he first discovered that she was leaving him. He went to a neighbor's, and asked him to go over there. He did not get her to come back. He didn't go over to Boland's himself, because he was warned several times not to go over there. He tried several times to get some one to go with him, but they would not go. He had not seen his wife since that time to speak to her, had seen her with her father and sisters but never alone. Appellee was twenty years old when he married. He loved his wife, and he says she seemed to love him. He sent some of his relations over to Boland's to get his wife to come back. He wanted to talk to his wife after she left, but could not get the chance.

On behalf of appellants, appellant Boland testified that he had done nothing to induce the wife of Stanley to return to his (Boland's) house, or to induce her to stay there. After his daughter ran away, he went up there and gave her a letter and talked to her, and told her never to come back home any more and told her under no circumstances would he ever forgive her for doing like she did. He never spoke to her about coming home at any time. Since she came home, she had been just like she always was, occupied the same room, and everything just like she was before. When he saw his daughter return, he was surprised. "It was like a clap of thunder from a clear sky." "She came back home on her own consent." The young man, Stanley, had never said anything to him about the girl coming back.

Appellant Boland was asked the following question, "Did she (meaning his daughter) make any statement to you, after she returned to your house, as to why she returned?" Appellee objected, and the court sustained the objection, and excluded all statements of plaintiff's wife after she returned to the home of her father. Appellants duly excepted to this ruling of the court.

The verdict and judgment were in favor of appellee against the appellants in the sum of six hundred and thirteen dollars. This appeal has been duly prosecuted.

Judgment affirmed.

Stevens & Stevens, for appellant.

If the fact that appellant's daughter remained at his home is to be considered as evidence against him, the daughter should be allowed to speak. The res gestae is admissible. 34 Am. Dec 469; 14 S.W. 1085; 4 Elliott on Evidence, § 1648. The exclusion of the evidence was error. 38 Law. Ed., U. S. Rep. 292; 1 Thompson on Trials, § 704. Judgment for alienating a husband's affections can not be sustained on mere evidence that defendant disliked plaintiff and took occasion to show it in petty ways. 81 N.W. (Ia), 788; 80 N.W. (Minn.), 950; 8 Okla. 124; 147 Mo. 387; 20 Wash. 266. Guilt of the parents is not to be presumed from the fact that their daughter leaves her husband and lives with them at their home. 21 Ark. 77. On the contrary, worthy motives are to be presumed. 21 Ark. 77; 98 N.W. 683; 13 Hun, 204; 29 N.Y.S. 37; 5 Johns. 196; 106 Ga. 130; 32 S.E. 78; 48 N.H. 211; 97 Am. Dec. 605; 27 Conn. 414; 24 Tex. 426; 60 Kans. 697; 57 P. 942; 74 Miss. 93; 19 So. 955; 32 L.R.A. 623; 124 N.C. 19; 32 S.E. 320; 70 Am. St. Rep. 574; 34 Ohio St. 621; 32 Am. Rep. 397; 51 Am. St. Rep. 310. The gravamen of the offense is the alienation with malice. 52 Am. Rep. 385; 10 L.R.A. 468. The burden of proof was on the plaintiff. 98 N.W. 683; 13 Hun, 204; 9 Misc. (N.Y.), 196; 40 Am. St. Rep. notes, p. 849; 51 Am. St. Rep. 310; 32 Am. Rep. 397; 21 Ark....