Brison v. McKellop

• Decision Date: 19 January 1914
• Citation: 138 P. 154,41 Okla. 374,1914 OK 39
• Parties: BRISON ET AL. v. MCKELLOP.
• Court: Oklahoma Supreme Court

138 P. 154

41 Okla. 374, 1914 OK 39

BRISON ET AL. v. MCKELLOP.

Supreme Court of Oklahoma

January 19, 1914

Syllabus by the Court.

In an action by either the husband or wife against the parents of the other for alienation of affections, it must appear that there had been a direct interference on defendant's part sufficient to satisfy the jury that the alienation was caused by the defendants, and the burden of proof is upon the plaintiff to show such interference.

And where the father or mother is charged with the alienation the quo animo is said to be the important consideration although it appears that a parent directly interferes, as by giving to a son or daughter advice on his or her domestic affairs, the other will have no cause of action against the parent, though the result of the parent's action is the alienation of the husband's or wife's affection, if such parent acts in good faith; and the motive of the parent in such case is presumed to be good until the contrary is proved.

"In actions against parents of either the husband or wife of the plaintiff, a much stronger rule prevails concerning the burden of proof, and plaintiff must not only show improper motives of the parents, but that the alienation was, in a sense, maliciously brought about. Where the action is against a stranger, the plaintiff need only show that it was wrongfully brought about."

The rule of evidence is that the declarations of the husband made in the absence of the defendant, as to the cause of his abandoning or putting away his wife, are not admissible, nor the declarations of the wife, in an action for enticing away the wife.

"The admission of incompetent and immaterial evidence that appears to have prejudiced the substantial rights of the party objecting to the admission thereof is reversible error." Meek v. Daugherty, 21 Okl. 859, 97 P. 557.

"Hearsay evidence having been admitted on the trial, which was liable to inflame the minds of the jury and prejudice them against the losing party, will cause reversal on review in this court." Bash v. Howald, 27 Okl. 462, 112 P 1125.

Commissioners' Opinion, Division No. 2. Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.

Action by Evelyn McKellop against Susie Brison and another. Judgment for plaintiff, and defendants bring error, and from a denial of their petition for a new trial for newly discovered evidence, they appeal. Reversed and remanded.

N. A. Gibson, of Muskogee (W. G. Robertson, of Muskogee, of counsel), for plaintiffs in error.

S. M. Rutherford and Bailey, Wyand & Moon, all of Muskogee, and Alvin F. Molony, of Seattle, Wash., for defendant in error.

HARRISON C.

No. 3190 was an action by Evelyn McKellop against Susie and W. M. Brison for damages for willfully and maliciously alienating the affections of her husband, Guy McKellop. Susie Brison was the mother, and W. M. Brison the stepfather, of Guy McKellop. The cause was tried in March, 1911, and judgment rendered in favor of Evelyn McKellop in the sum of $10,000, $5,000 of which were for actual and $5,000 for exemplary damages. This judgment was appealed from by Susie and W. M. Brison, and the cause filed in this court October 19, 1911. Before the appeal was filed, however, to wit, on July 3, 1911, Susie and W. M. Brison, defendants below, filed a petition for a new trial on the grounds of newly discovered evidence, and from the judgment of the court at a later date denying a new trial, they appeal to this court, such cause being No. 3896, and by agreement the two causes are consolidated.

While a determination of the questions presented in No. 3190 are to an extent affected by the subsequent developments in No. 3896, yet in order to dispose of the questions presented in each case clearly, we will first consider those presented in No. 3190. There are a number of assignments of error contended for; but as there are some decisive propositions involved, a determination of which disposes of the other assignments, we will not notice each assignment separately.

To begin with, let it be borne in mind that the action was brought against defendants for willfully and maliciously alienating the affections of plaintiff's husband and causing divorce proceedings. In cases of this character it is well settled as a general rule, and we think a wise and just one, that recovery cannot be had unless it appears, either from positive testimony or by strong valid inference, that the acts complained of were inspired by malice; that the motive was willful and malicious. See Cyc. 1619, 1620; 15 Am. & Eng. (2d Ed.) 66, 67; 3 Elliott on Ev. § 1643, and cases cited in notes supporting the text in each of the above authorities. Also Reed v. Reed, 6 Ind. App. 317, 33 N. E.

638, 51 Am. St. Rep. 310; Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397; Hutcheson v. Peck, 5 Johns. (N. Y.) 196; Tucker v. Tucker, 74 Miss. 93, 19 So. 955, 32 L. R. A. 623; Multer v. Knibbs, 193 Mass. 556, 79 N.E. 762, 9 L. R. A. (N. S.) 322; 9 Ann. Cas. 958; Brown v. Brown, 124 N.C. 19, 32 S.E. 320, 70 Am. St. Rep. 574; Leavell v. Leavell, 122 Mo.App. 654, 99 S.W. 460; Cornelius v. Cornelius, 233 Mo. 1, 135 S.E. 65; Zimmerman v. Whiteley, 134 Mich. 39, 95 N.W. 989; Beisel v. Gerlach, 221 Pa. 232, 70 A. 721, 18 L. R. A. (N. S.) 516.

It is also a fundamental principle of pleading that the burden is upon the plaintiff to prove the facts necessary to a recovery, and in actions of this character, especially in actions by either the husband or wife against the parents of the other, the burden is heavier, and the degree of proof required stronger, than in ordinary actions, or even in actions of this character against a stranger. Elliott on Ev. (volume 3, § 1643) says: "In actions against parents of either the husband or wife of the plaintiff, a much stronger rule prevails concerning the burden of proof, and plaintiff must not only show improper motives of the parents, but that the alienation was, in a sense, maliciously brought about. Where the action is against a stranger, the plaintiff need only show that it was wrongfully brought about."

In Hutcheson v. Peck, supra, Chief Justice Kent of the Supreme Court of New York said: "I am also for a new trial. If the defendant did not stand in the relation of father to the plaintiff's wife, I should not, perhaps, be inclined to interfere with the verdict. But that relationship gives the case a new and peculiar interest; this is the first action of the kind I have met with, brought against the father. A father's house is always open to his children; and, whether they be married or unmarried, it is still to them a refuge from evil and a consolation in distress. Natural affection establishes and consecrates this asylum. The father is under even a legal obligation to maintain his children and grandchildren, if he be competent, and they unable to maintain themselves; and, according to Lord Coke, it is 'nature's profession to assist, maintain, and console the child.' I should require, therefore, more proof to sustain the action against the father than against a stranger. It ought to appear either that he detains the wife against her will, or that he entices her away from her husband, from improper motives. Bad or unworthy motives cannot be presumed. They ought to be positively shown, or necessarily deduced from the facts and circumstances detailed. This principle appears to me to preserve, in due dependence upon each other, and to maintain in harmony, the equally strong and sacred interests of the parent and the husband."

In Multer v. Knibbs, supra, the Supreme Court of Massachusetts said: "In an action of this kind, brought by a husband against the father of his wife, upon the allegations that the defendant has enticed the plaintiff's wife away from him, alienated her affections, persuaded and induced her not to live with him, and has harbored, secreted, and concealed her, it is not (as it might be in an action against a stranger) enough to show that the defendant actually has performed the acts charged, and that they have resulted in an abandonment of the plaintiff by his wife. There is a material difference between the acts of a parent and those of a mere intermeddler. Even in the latter case, a defendant may disprove any intent on his part, in advising the wife, to cause a separation, and may show that his advice was given honestly. Tasker v. Stanley, 153 Mass. 148, 26 N.E. 417 . But the rights and the corresponding duties of a parent are much greater than those of a stranger, and much stronger evidence is required to maintain an action against him. * * * And the burden is upon the plaintiff to show that the defendant has been prompted by malice in what he has said and done, and to overcome the presumption that he acted under the influence of natural affection, and for what he believed to be the real good of his child. Bennett v. Smith, 21 Barb. (N. Y.) 439; Pollock v. Pollock, 9 Misc. Rep. 82, 29 N.Y.S. 37; White v. Ross, 47 Mich. 172, 10 N.W. 188; Westlake v. Westlake, 34 Ohio St. 621 ; Brown v. Brown, 124 N.C. 19, 32 S.E. 320 ; Young v. Young, 8 Wash. 81, 35 P. 592; Reed v. Reed, 6 Ind.App. 317, 33 N.E. 638 ."

"Direct Act of Interference.--In order to sustain an action for the alienation of the husband's affections it must appear, in addition to the fact of alienation or the fact of the husband's infatuation for the defendant, that there had been a direct interference on the defendant's part sufficient to satisfy the jury that the alienation was caused by the defendant, and the burden of...