Boyle v. Clark

• Decision Date: 15 September 1955
• Docket Number: No. 33174,33174
• Citation: 47 Wn.2d 418,287 P.2d 1006
• Court: Washington Supreme Court
• Parties: Perry D. BOYLE, Appellant, v. L. R. CLARK, Respondent.

Page 418

47 Wn.2d 418

287 P.2d 1006

Perry D. BOYLE, Appellant, v. L. R. CLARK, Respondent.

No. 33174.

Supreme Court of Washington, Department 1.

Sept. 15, 1955.

Kennett, McCutcheon & Soderland, Seattle, for appellant.

Olwell & Boyle, Seattle, for respondent.

DONWORTH, Justice.

Plaintiff sought by this action to recover damages from defendant for the latter's acts and conduct, which allegedly resulted in the alienation of the affections of plaintiff's former wife. The evidence was in conflict on most of the material issues. However, there was testimony, part of which we shall set forth below, which the jury could, and apparently did, believe. It is sufficient to describe the general situation of the parties prior to and during the time of the alleged alienation of affections. Herein plaintiff will be referred to as appellant and defendant will be called respondent.

Appellant was a bus driver for the Greyhound Company and had been so employed for fifteen years. He and his former wife, Mary, had been married about seventeen years, had one son about sixteen years of age, and lived in a house they owned in Seattle. Respondent, then aged 70, was conducting a large dental office in which about twenty-five or thirty persons (dentists and dental assistants) were employed. Mary was first employed in this office on December 15, 1949.

During the first three weeks of her employment in this office, Mary would arrive hom shortly after the office closed at 6:00 p. m. Thereafter, however, Mary started coming home later from the office. On January 6, 1950, Mary told her family of having had dinner that evening with respondent. Two or three times each week during the next three weeks Mary told her family of having been dining and dancing with respondent or riding in his Cadillac automobile. Appellant and his son many times saw respondent bring Mary home in the Cadillac from such events between the hours of 8:00 p. m. and 1:00 a. m.

In the latter part of January, Mary asked her husband's permission to accept an invitation she had been offered for an all-expense-paid trip to San Francisco. When appellant refused his permission, she was disappointed. About February 1, 1950, she asked appellant for his permission to make 'the trip of her lifetime', which was an allexpense-paid trip to Honolulu. Appellant refused to consent to her making this trip.

Thereafter, Mary's attitude changed. She continued to come home late at night but refused to tell her husband where and with whom she had spent the evening. She neglected the housework which previously she had attended to. She expressed a desire to be as 'free as the birds.'

About June 1, 1950, she discontinued occupying the bedroom and thereafter slept in a sleeping bag on the living room floor.

In mid-December, 1950, after Mary had made specific mention of wanting a divorce, appellant, on two occasions, saw Mary and respondent on downtown streets. On one occasion they were walking together arm in arm, and on the other, appellant and his son saw Mary meet respondent on the street and watched them enter a club.

During the month of December, 1950, Mary cooked but one meal for her family, and that meal consisted of warmed-up left-overs from respondent's Christmas party. Thereafter, the relations between appellant and his wife became progressively worse, eventually culminating in Mary's moving from the family home on April 12, 1951. Thereafter she lived in various downtown apartments. On April 26, 1951, appellant commenced an action for divorce.

On May 3, 1951, appellant, accompanied by his mother and his son, saw respondent and Mary riding in the Cadillac on Pike street. They followed them to a point beyond Woodinville, where respondent stopped his car and appellant stopped his car. As to exactly what happened then, the five persons present testified differently, but all admit there was a 'scene.'

Thereafter, during the year from May, 1951, to May, 1952, Mary and respondent were seen together a number of times in his car and at restaurants by appellant and his son. Several discussions were had between Mary and appellant regarding a possible reconciliation but none materialized, and on July 21, 1952, appellant was granted a divorce from Mary.

On June 22, 1953, appellant married a widow whom he had met in Spokane shortly before. Both of them testified that this had turned out to be a happy marriage.

This action was commenced on December 2, 1953, by the filing of the complaint. On December 11, 1953, respondent's demurrer to the complaint on the ground that the action was not commenced within the time limited by law was overruled. On February 15, 1954, respondent filed an answer which put in issue the material allegations of the complaint and by way of affirmative defense alleged that any loss suffered by appellant was due solely to his own cruelty to, and personal indignities toward, his former wife. This new matter was denied in the reply.

The case was tried before the court sitting with a jury and resulted in a verdict for appellant inhe sum of $20,000. At the trial, the issue of the statute of limitations was raised by respondent when challenging the sufficiency of appellant's evidence at the time he rested and at the close of the case. The trial court denied both challenges.

Respondent moved, in the alternative, for judgment n. o. v. on the grounds that the action was not commenced within the time limited by law and that there was no evidence to support the verdict, or, in the alternative, for a new trial on the grounds, among others, that the verdict was so excessive as to indicate that it was the result of passion and prejudice and that substantial justice had not been done.

After argument, the motion for judgment n. o. v. was denied but the motion for a new trial was granted. The court's reasons for granting the motion for a new trial are stated in its order, as follows:

'It Is Further Hereby Ordered that defendant's alternative motion for a new trial for the following causes materially affecting the substantial rights of defendant: Damages so excessive as to unmistakably indicate that the verdict must have been the result of passion or prejudice; and that substantial justice has not been done, be and the same hereby is granted upon each and both of the aforesaid grounds.

'The Court Finds And Concludes that the damages awarded by the jury are so excessive as to indicate conclusively that there was passion or prejudice. The plaintiff himself brought the action for divorce, was actually remarried at the time he filed the complaint in this action (to a woman six years younger than his first wife), and he claimed to be devoted to his second wife. The evidence indicates that the plaintiff took his young son with him while he followed defendant and Mary Boyle and caused this same son to be subpoenaed at the trial to testify against his mother. The Court cannot believe that plaintiff was damaged in the sum of $20,000, or even one-tenth that amount, and the award of the jury is so excessive as to indicate conclusively passion and prejudice.

'The Court Finds And Concludes that substantial justice was not done in this case in that the verdict of the jury is against the overwhelming weight of the evidence. Conceding that there was some inference from the evidence to take the case to the jury, still there was no evidence that the defendant ever bestowed any gifts upon Mary Boyle or that she ever received a favored position in his office or that he even visited her in the two or three apartments she occupied after her separation from the plaintiff. In fact, the evidence on this last point was overwhelming that he did not so visit her at any time. It is inconceivable to me that the defendant and Mary Boyle could have been carrying on a clandestine affair without there being available to the plaintiff much more substantial evidence thereof than that shown.

I think this is particularly true in view of the admission that he was at various times attempting to obtain evidence against the defendant. It is my opinion that substantial justice is not done by this verdict; * * *'

Appellant has appealed, and assigns error to the entering of the order granting a new trial. Respondent has cross-appealed and, while he argues in support of the order granting the new trial, assigns error to the adverse rulings made by the court in disposing of (a) his demurrer, his challenges to the sufficiency of the evidence, and his motion for judgment n. o. v. upon the ground that the action was not commenced within the time limited by law, and (b) his challenge to the sufficiency of the evidence and motion for judgment n. o. v. upon the ground that there was no evidence or reasonable inference from the evidence to justify the verdict.

Since respondent did not elect to stand on his demurrer, but answered the complaint, we need not review the correctness of the court's action in overruling the demurrer. Pacific Tel. & Tel. Co. v. State Tax Comm., 180 Wash. 673, 42 P.2d 420, 421. In that case, this court, in dealing with a similar situation, said:

'* * * not having elected to stand upon their demurrer and not having refused to plead further, the ruling of the court upon the demurrer is not now before us, as no appeal lies from the overruling of the demurrer, unless the party adversely affected elects to stand thereon and refuses to plead further and a judgment is entered. * * *'

More than two months elapsed between the time the demurrer was overruled and the answer was filed. The answer did not plead the statute of limitations as an affirmative defense or in any other manner. The record does not disclose any motion having been made by the respondent for leave to amend his answer to incorporate such affirmative defense therein. The statute of limitations is an affirmative defense. State ex rel. Teeter v. Superior Court, 110 Wash. 255, 188 P. 391, Dolan v. Baldridge, 165 Wash. 69, 4 P.2d 871. A...