Bradford v. Bradford

• Decision Date: 16 October 1940
• Citation: 107 P.2d 106,165 Or. 297
• Parties: BRADFORD <I>v.</I> BRADFORD
• Court: Oregon Supreme Court

165 Or. 297

107 P.2d 106

BRADFORDv.

BRADFORD

Supreme Court of Oregon.

Submitted on briefs October 16, 1940.

Affirmed November 19, 1940.

Trial — Offer of proof

1. In wife's action for alienation of husband's affections, court properly denied plaintiff's offer of proof that she was under care of doctor, who prescribed certain diet to relieve condition due largely to husband's treatment of plaintiff, and that husband refused to furnish such diet and took care to see that articles of food which he brought home were not those on diet list furnished him, but those on list of articles which doctor said that plaintiff should not use, as nothing in such offer charged or tended to prove any conduct or statement of defendant.

Husband and wife — Alienation of affections

2. In action against mother of plaintiff's husband for alienation of his affections, court properly denied plaintiff's offer of proof that she was viciously assaulted by defendant's daughter and sister at defendant's home and called for help, but that defendant merely watched assault, made no move to stop it, and uttered no protest, as such offer merely disclosed neutral attitude of defendant in reference to conduct between plaintiff and women not parties to action.

Trial — Offer of proof

3. In action against mother of plaintiff's husband for alienation of his affections, trial court committed no reversible error in denying plaintiff's offer of proof that defendant's daughter or sister said to husband in defendant's presence at her home, without protests by defendant, that husband had better not go home and take his baby back because plaintiff would poison him and baby, in absence of statement in such offer that defendant entertained malicious or hostile opinion of plaintiff.

Trial — Construction of evidence

4. In considering motion for judgment of involuntary nonsuit, plaintiff's evidence must be deemed true, every fact inference which can be reasonably and legitimately drawn therefrom should be given effect, and evidence must be interpreted in light most favorable to plaintiff.

Husband and wife — Alienation of affections

5. In wife's action for alienation of husband's affections, plaintiff must prove that defendant actually alienated husband's affections and that such action was malicious in order to prevail.

Husband and wife — Alienation of affections

6. "Malice" in alienating husband's affections means intentional doing of wrongful act without just cause or excuse.

Husband and wife — Alienation of affections

7. In action against mother of plaintiff's husband for alienation of his affections, evidence that defendant disliked character of care bestowed by plaintiff on husband's infant daughter by previous marriage, manifested such dislike by substituting defendant's attention and oversight for such care, not with malice toward plaintiff, but with grandmother's solicitude for grandchild's welfare and happiness, and asserted right to advise her son, was insufficient to warrant judgment for plaintiff, in absence of testimony that defendant gave husband any advice to plaintiff's prejudice or that he lost his love for plaintiff because of defendant's advice.

Husband and wife — Alienation of affections

8. In action against parents for alienation of child's affection for his or her spouse, defendants are presumed to have acted in good faith, under influence of mutual affection, and for what they believed to be their child's real good.

                  See 27 Am. Jur. 168
                  30 C.J., Husband and Wife, § 1015
                

In Banc.

Appeal from Circuit Court, Multnomah County.

ROBERT TUCKER, Judge.

Action by Ola B. Bradford against Mary Bradford to recover damages for alienation of the affection of plaintiff's husband. From a judgment of involuntary nonsuit, plaintiff appeals.

AFFIRMED.

Roscoe P. Hurst and Guy L. Wallace, both of Portland, for appellant.

Wheelock & Wheelock and W.H. Morrison, all of Portland, for respondent.

KELLY, J.

This is an action to recover damages for the alienation of the affection of William Leslie Bradford for his wife the plaintiff herein. The defendant is the mother of William Leslie Bradford. From a judgment of involuntary nonsuit plaintiff appeals.

At the time of the marriage of plaintiff and said William Leslie Bradford, to-wit, April 5, 1936, an infant daughter of the said William Leslie Bradford, by a former marriage, had attained the approximate age of one year, which child, from the death of her mother on or about May 19, 1935, had been under the care and custody of defendant herein.

Plaintiff charges that soon after plaintiff's marriage to defendant's son, defendant commenced toward plaintiff a course of conduct of falsehoods, secret conversations and innuendos told to said son of defendant, plaintiff's husband, whereby in violation of an express agreement that plaintiff should have the custody of said child, defendant secured her care and custody and refused to surrender the same to plaintiff; and that thereby and through defendant's wanton influence over, and persuasions exercised upon, plaintiff's husband, defendant caused plaintiff's husband to desert and abandon plaintiff.

On or about September, 1937, plaintiff's husband instituted a suit for divorce against plaintiff, which suit was tried in the circuit court of Oregon in and for Multnomah county on or about March 11, 1938, resulting in an order of dismissal.

At the trial of said divorce suit, defendant herein was subpoenaed by the plaintiff herein, but defendant did not testify therein in behalf of her son, plaintiff's husband.

1. Counsel for defendant, in cross-examining plaintiff in the instant case asked her if her husband and she had not quarreled over money matters and who should buy the groceries, or over buying groceries and things of that kind. Plaintiff answered this question in the affirmative.

The first assignment of error is based upon the denial by the trial court of appellant's offer of proof to show that the quarrels between plaintiff and her husband were caused by happenings other than those pertaining to money and that such quarrels, as plaintiff and her husband had, were directly attributable to the defendant.

The offer of proof is in the following language:

"With relation to the question asked by Mr. Morrison of the plaintiff, if it was not a fact that the plaintiff and her husband, Leslie Bradford, quarreled over money matters, to which question the plaintiff responded `Yes, we did', the plaintiff offers to prove further in relation to that answer that the plaintiff was under the care of a doctor who had prescribed a certain diet to relieve a condition which existed in the plaintiff of malnutrition, anemia, low blood pressure, and a general run down nervous condition, and that this condition was due largely to the treatment which the husband had accorded to his wife after he returned home when his divorce suit had been dismissed; and that Leslie Bradford, the plaintiff's husband, refused at all times to furnish plaintiff with the diet which the doctor had prescribed as necessary to cure her physical ailments; that he was furnished with a copy of the diet list and that he took pains to see that the articles of food which he brought home were not the articles which the doctor had recommended as being suitable for the requirements of the plaintiff, but were rather the articles which were on the list which the doctor had...