Booth v. Krouse
| Decision Date | 03 January 1946 |
| Citation | 78 Ohio App. 461,65 N.E.2d 89 |
| Parties | BOOTH v. KROUSE. |
| Court | Ohio Court of Appeals |
Mason Douglass, of Dayton, for appellant.
Irvin Carl Delscamp, of Dayton, for appellee.
This is an appeal on questions of law from a judgment of the Common Pleas Court in favor of plaintiff and against the defendant in the sum of $7,500 and costs. The action is for alienation of affections, and upon issue joined the cause was submitted to a jury which returned a verdict for the plaintiff in the sum of $15,000. Upon motion for new trial the trial judge found the verdict to be excessive and ordered a remittitur in the sum of $7,500 which the plaintiff accepted and judgment was entered on the verdict accordingly and motion for new trial was overruled.
There are nine errors assigned but the brief appellant is devoted to argument under three headings:
1. The judgment of the court.
2. The size of the verdict indicates passion and prejudice.
3. Misconduct of counsel for plaintiff in argument to the jury.
We will, in general, follow the order adopted in the brief of plaintiff in the consideration of the questions presented.
We state enough of the operative facts as are necessary to an appreciation of the legal propositions involved upon the errors discussed in the briefs and, particularly, as they reflect upon the correctness of the judgment and the amount thereof.
The Booths were married Jan. 1, 1919. Mr. Booth was of an inventive turn of mind and throughout the years prior to his coming to Dayton had followed the course of many inventors the results of which had not been especially lucrative. The plaintiff was more fortunately situated financially in that her parents were able to and at times during their married life did assist the parties in meeting their necessary expenses. The parties lived together at several places throughout the United States. For several years prior to the institution of the action herein they had lived at Glencoe, Ill., in the family home of plaintiff's parents whence they had moved upon the death of plaintiff's mother. Plaintiff met her obligations as a wife and did the household work hereself, including cleaning, washing, ironing, cooking and at times cared for one or more boarders and roomers who were associated with the husband in his experimental ventures. At one time for several months there were three such persons living with the parties. The husband converted a barn on the premises where the parties lived into a shop and completely equipped it with machinery. To accomplish this, plaintiff's father assisted the husband financially.
In July, 1941, the husband took employment at Dayton, Ohio, as a consulting aeronautical engineer with United Aircraft Products Co. and was in this employment at the time of the trial of the cause.
The record is comprehensive and voluminous respecting the experiences of the Booths during their married life as they would reflect upon the husband's affection for his wife, and the conduct of defendant and Mr. Booth and his movements during the period after he came to Dayton.
It appears that defendant met Mr. Booth in July, 1942, and thereafter until after the suit was instituted these parties were together quite frequently uninterrupted by any lengthy intervals. They met socially at homes of their friends, at the apartment of each, and took trips to cities and eating places outside Dayton. Eventually in June, 1943, Mr. Booth went to the home of the defendant to take his breakfast and dinner, which arrangement continued even after this suit and a divorce action were instituted. Mr. Booth spent parts or all of many evenings at the home of defendant where she lived with her mother, and when plaintiff made her last visit to Dayton, she saw her husband at the home of defendant several times.
The plaintiff was quite ill in October, 1942, necessitating a surgical operation. Her husband returned to their home, took her to the hospital in Chicago and attended her faithfully during her stay there and drove her to their home when she left. During this sickness and while Mr. Booth was in Chicago, defendant had occasion to make a business trip there with her employer, Mr. Elder. They were quartered at the Morrison Hotel. On this occasion Mr. Booth visited defendant and dined with her and Mr. Elder and they arranged for her to return to Dayton with him in his automobile, which she did. The record is fully developed as to this and other events and it may be fairly stated that there is no proof of any illicit relations between Mr. Booth and defendant at any time. Mr. Booth told his wife nothing about his association with the defendant, nor about her return to Dayton with him from Chicago, but wrote to her giving an account at variance with his testimony as to what actually occurred. Mr. Booth did not return to their home at Glencoe after his visit to Chicago when he and the defendant returned to Dayton by automobile.
On January 3, 1943, Mr. Booth notified his wife by letter that he no longer loved her and instructed her to get in touch with a friend to work out the 'mechanics of the situation'. Plaintiff attempted a reconciliation by correspondence and later came to Dayton October 24, 1943, where she and her husband had several meetings, at the last of which, it is testified by plaintiff, Mr. Booth indicated a purpose to return to her. This intention was changed the next day after he had gone to the apartment of defendant and talked to her, after which he communicated his change of mind to plaintiff by 'phone from the apartment of defendant.
Mr. Booth insists that when he first left his home to come to Dayton he no longer had affection for plaintiff; that this condition had been cumulatively brought about by the refusal of plaintiff to bear children although it had been definitely agreed before their marriage this was to be done; by plaintiff's continual complaint about her state of health, largely fanciful; by her assumption of a superior attitude toward him because he was an inventor and she had money and because of her attempted interference with his profession. All of these defenses together with the claim of the plaintiff were developed at great length and the issues submitted to the jury.
Upon this appeal we must give that construction to the facts which is most favorable to the support of the verdict and judgment. So doing, many logical inferences may be drawn to refute Mr. Booth's testimony as to his state of affection for his wife.
It reasonably appears that plaintiff had been a faithful, dependable, industrious and co-operative wife. The fact that she had access to money was the one factor which, no doubt, made possible that Mr. Booth carry on his experiments. Whether or not the failure to bear children was the fault of the plaintiff is in doubt; that she was obnoxious in stressing the difference in their financial resources does not project clearly from this record. More persuasive than all of these permissible inferences is the tenor and purport of the letter itself, of January 3, 1943, which Mr. Booth wrote to his wife indicating a purpose to sever their marital relations. This is the language: The italicized portion of the letter permits the interpretation that the conclusion stated had only been reached at about the time the letter was written. Mr. Booth says that he put off the notification contained in the letter to his wife until it could be done with the least shock to her. But the time selected for the notice was not propitious because his wife was still suffering from the aftereffects of her operation.
The jury could reasonably have concluded that no one of the reasons assigned by the husband to account for the alienation of his affections for his wife satisfactorily explained it. When Mr. Booth was in attendance on his wife at the time of her hospitalization and when he made his last visit to her, there was no intimation of any change in his regard for her.
It is insisted that the association of Mr. Booth with the defendant was but social; that there were no immoral relations and no evidence of love manifested between them. The relation may have been nothing more than as characterized by the defendant 'a lovely friendship'. Even so, the test as to the right of the plaintiff to recover is whether or not the defendant, by her conduct, intentionally accomplished the alienation of the affections of plaintiff's husband. It is not necessary in Ohio to support the action that adulterous relations appear although it is in some states.
The court in its general charge in stating the elements of the cause of action pleaded permitted the jury to consider two aspects, (1), whether or not the facts and conduct of the defendant caused plaintiff to lose the affection of her husband, or (2) prevented plaintiff from regaining her husband's affection. The court throughout the charge carried this twofold theory of the factual questions presented to the jury for consideration.
It is urged by the appellant that that portion of the charge which permitted the jury to consider whether or not the acts of the...
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