Browning v. Browning

• Decision Date: 06 April 1931
• Citation: 41 S.W.2d 860,226 Mo.App. 322
• Parties: ELIZABETH BROWNING, RESPONDENT, v. HOMER BROWNING ET AL., APPELLANTS
• Court: Kansas Court of Appeals

41 S.W.2d 860

226 Mo.App. 322

ELIZABETH BROWNING, RESPONDENT, v. HOMER BROWNING ET AL., APPELLANTS

Court of Appeals of Missouri, Kansas City

April 6, 1931

Appeal from Circuit Court of Gentry County.--Hon. D. D. Reeves Judge.

AFFIRMED.

Judgment affirmed.

F. P Stapleton, James F. Gore, Cook & Cummins and Shinabarger Blagg & Ellison for respondent.

J. W. McKnight, Ed Kelso, H. G. Hunt, Gerlash & Gerlash and Dubois & Miller for appellants.

ARNOLD, J. Bland, J., concurs; Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action in damages for the alleged alienation of the affections of plaintiff's husband by the defendants.

Elizabeth Browning was a minor at the institution of this suit which was returnable to the August term, 1928, of the circuit court of Atchison county, Missouri, and the suit was begun in the name of her father, Roy L. Hulse, as next friend. Defendant Homer Browning is the father of Cameron Browning, husband of Elizabeth; and defendants Frank and Jane Browning are the parents of Homer. The cause was tried in the circuit court of Atchison County where a mistrial was declared. At the February term, 1929, of said court, on application of plaintiff, a change of venue was taken to the circuit court of Gentry county and the cause was tried there at the September term, 1929, resulting in a verdict and judgment for plaintiff in the sum of $ 4,000 compensatory damages. Motions for a new trial and in arrest of judgment were unavailing and defendants have appealed.

The record discloses Elizabeth Hulse and Cameron Browning were married on February 26, 1927, at plaintiff's home, both families being present. The young people were students in Fairfax high school in Atchison county where they first met; such meeting and subsequent association finally resulting in their marriage, as above recited. Prior to and at the time of said marriage plaintiff was living with her father, Roy L. Hulse, editor of a newspaper, the Fairfax Forum. Cameron Browning lived with his father and mother on a farm two and one-half miles southwest of Fairfax. It appears plaintiff's parents opposed the marriage on the sole ground of plaintiff's youth, she being eighteen years of age at the time. After the wedding the young couple went on a wedding trip to St. Joseph and Kansas City, Missouri, in an automobile which, with some funds for expenses, were furnished by defendants. They were gone about a week and on their return, went to the home of plaintiff's parents in Fairfax where they remained two or three days. Then, taking plaintiff's personal effects, they moved into the home of Homer Browning on the farm, there to make their home. It appears this arrangement was agreed upon prior to the marriage. It further appears plaintiff had never lived on a farm and was unfamiliar with its requirements; that her activities had been confined to the duties of her parents' home and helping her father in the publication of his newspaper.

The Browning farm consisted of 315 acres and when the young couple went there to live the house was occupied by them and Homer Browning and his wife. Defendants Frank and Jane Browning lived in Fairfax. At the time Cameron Browning and his wife moved onto the farm, Homer Browning was in poor health and suffering from a goitre, for the treatment of which he and his wife, Marie, went to Rochester, Minnesota, and remained there for about six weeks.

There is testimony tending to show that after the young people moved to the farm there was no friction for about three weeks. However, plaintiff's evidence shows that on their arrival at the farm, some friction arose between Homer Browning and herself; that this continued until he left for Rochester and was renewed on his return. It appears defendants Frank and Jane Browning came often from their home in Fairfax to the farm, during the absence of Homer Browning, the former aiding in feeding the cattle and hogs, and the latter assuming some direction of the household activities. The testimony shows there arose much friction between the Frank Brownings and plaintiff, caused by criticizing remarks against plaintiff by these Brownings, made in the presence of plaintiff's husband. The exact nature of these remarks will be referred to hereafter as required.

About August 1, 1927, Homer Browning told plaintiff and her husband they would both have to get out if they did not do differently, but if they did do differently, they might stay. On August 7, plaintiff took her personal belongings and went to the home of her father in Fairfax, Cameron going to Oklahoma, but at this time, so plaintiff testified, there was no friction between her husband and herself. Cameron wrote three letters to his wife from Oklahoma which she answered. She stated her husband wrote her no more, but that she wrote him several letters thereafter which he did not answer. There is no showing in the record that there was any correspondence between Cameron and the defendant while he was in Oklahoma except on August 31, 1927, when Cameron telegraphed his father to send him some money. Instead of sending money, Homer Browning telegraphed a railroad ticket for his son's return to Fairfax which Cameron refused to accept. Late in November of the same year, Cameron returned to Fairfax for a few days but did not inform plaintiff of his return. He soon returned to Oklahoma where he stayed until February, 1928, when he again came to Fairfax and remained until the trial of this suit in September, 1929. During all this time there was no communication, nor attempt at communication, between plaintiff and her husband, and in fact they ceased recognition of each other.

The petition alleges the facts of plaintiff's marriage to Cameron Browning on February 6, 1927; of the relation of parties defendant; that from the date of plaintiff's marriage until August 7, 1927, the couple lived happily together as husband and wife, and enjoyed the aid, support and companionship, society and affection of each other; that defendants "wrongfully, wickedly and maliciously acted, conspired, confederated and cooperated together, with the wrongful, wicked and malicious intent to cause plaintiff's said husband to leave and abandon her and to cease living with plaintiff as her husband, and to deprive plaintiff of the aid, support, companionship, society, protection and affection of her said husband; that, on or about August 1, 1927, the defendants, pursuant to their wicked, wrongful and malicious intent, did wrongfully, wickedly and maliciously entice, influence and induce plaintiff's said husband to leave and abandon her; that her said husband being influenced by and acting under the said wrongful, wicked and malicious enticement, influence and inducement of defendants, did then and there leave and abandon her, and being influenced by and acting under said wrongful, wicked and malicious enticement, influence and inducement, has ever since remained away from and separate and apart from her without her fault and contrary to her desires and wishes; that ever since said abandonment, the defendants have wrongfully, wickedly and maliciously detained and harbored plaintiff's said husband, and have kept him separate and apart from her, and have, by their said wrongful, wicked and malicious acts and conduct deprived plaintiff and still do deprive her of the aid, support, companionship, society, protection and affection of her said husband, Cameron Browning; and that this plaintiff has been humiliated and disgraced by reason of the said defendants' wrongful, wicked and malicious acts and conduct as aforesaid and has suffered great anguish and distress of body and mind . . ."

Judgment is asked in the sum of $ 15,000, actual and $ 10,000 punitive damages. The second amended answer, on which the cause was tried, admits the marriage of plaintiff to Cameron Browning and that she is now his wife, as alleged in the petition, and generally denies all other allegations therein contained. As further answer, it is averred Cameron Browning had no property and defendants furnished plaintiff and her husband a good home, provided for them, and did everything they could to induce plaintiff and her said husband to get along and live happily together; that their separation and their now living apart were caused by "the misconduct of plaintiff and the conduct of her said husband Cameron Browning, and through no fault or act of these defendants, or either of them."

The answer further avers that soon after the marriage of plaintiff and her husband, they went to the home of defendants to live and engage in farming; that soon thereafter plaintiff began manifesting and giving expression to an ungovernable temper and showing an indolent and careless disposition both toward her husband and the defendants, and by a continuous course of conduct from about March 1, 1927, until their final separation on August 7, 1927, without cause; that she would become enraged at, and abusive toward her husband and the defendants, calling them all manner of vile and abusive names and making untrue and unjust accusations about them; was dictatorial and uncongenial in the home and made herself highly obnoxious and disagreeable; was lazy, careless and indifferent about the house; would not work or assist in doing the work which had to be done about the home and on the farm; continually and repeatedly insisted on her and her husband being and staying away from home, thereby neglecting and failing to perform their work and duties on the farm and rendering themselves unfit for doing their necessary work and duties thereon; that plaintiff was dissatisfied with the farm and living thereon, continually and repeatedly insisted on leaving the farm and going to the city and becoming an actress, or...