Castner v. Wright

• Decision Date: 08 April 1964
• Docket Number: No. 51322,51322
• Citation: 256 Iowa 638,127 N.W.2d 583
• Parties: Carroll E. CASTNER, Appellee, v. R. C. WRIGHT, Appellant.
• Court: Iowa Supreme Court

Page 583

127 N.W.2d 583

256 Iowa 638

Carroll E. CASTNER, Appellee, v. R. C. WRIGHT, Appellant.

No. 51322.

Supreme Court of Iowa.

April 8, 1964.

Rehearing Denied June 9, 1964.

See 128 N.W.2d 885.

James P. McGrane, Des Moines, and Life, Davis & Life, Oskaloosa, for appellant.

Heslinga & Heslinga, Oskaloosa, for appellee.

GARFIELD, Chief Justice.

Plaintiff Castner brought this law action against defendant Wright for alienating the affections of plaintiff's wife Gelenne. Following trial a jury returned a verdict for plaintiff of $45,000. The trial court ruled this amount was not sustained by sufficient evidence and gave plaintiff the option of remitting all in excess of $12,500 or submitting to a new trial. Plaintiff filed the remittitur. Defendant has appealed from judgment against him for the reduced amount.

I. Defendant's first assigned error is the overruling (by Judge Carson who did not preside at the trial) of his motion for change of place of trial to another county on the ground the inhabitants of Mahaska county were so prejudiced against him he could not obtain a fair trial there. The motion was supported by affidavit of defendant and identical affidavits of 50 residents of Mahaska county, stating many inhabitants of the county are prejudiced against defendant and a fair trial could not be had there.

Plaintiff filed resistance to the motion, supported by 31 counter-affidavits of residents of Mahaska county in three somewhat different forms. Twenty-nine of them state that in affiant's opinion there is no such prejudice in the county that defendant could not receive a fair jury trial there. The other two affidavits express the opinion he could receive a fair jury trial in Mahaska county.

The motion and resistance were submitted solely on the affidavits. No affiant was orally examined as permitted by rule 167 (c), Rules of Civil Procedure, 58 I.C.A. nor was other proof offered in support of the motion. The court held the affidavits attached to the motion were insufficient in not stating the affiant was disinterested and not an agent, servant, employee or attorney of defendant, nor related to him within the fourth degree. Such disinterest and lack of relationship are asserted in the motion signed by defendant's counsel but it is not verified. The court also found there was insufficient showing the inhabitants of Mahaska county were so prejudiced against defendant he could not obtain a fair trial there.

The requirement of rule 167(c) as to the contents of affidavits in support of a motion for change of place of trial is substantially the same as that of the statute the rule supersedes--section 11408, 3, Code, 1939. Note 29 Iowa Law Review 108, 109-10. We construed the statute to require the statements as to disinterest and lack of relationship of each affiant to appear in his affidavit. The Chicago & S. W. R. Co. v. Heard, 44 Iowa 358, 360-361; Fairburn v Goldsmith, 58 Iowa 339, 340-341, 12 N.W. 273. See also Goodnow v. Litchfield, 63 Iowa 275, 19 N.W. 226.

The view taken in these early cases is consistent with the provision of rule 80(b), R.C.P., 'Any motion asserting facts as the basis of the order it seeks * * * shall contain affidavit of the person or persons knowing the facts requisite to such relief.'

Aside from any question of sufficiency of the affidavits attached to defendant's motion, it does not appear the ruling was wrong. Such a ruling, at least where counter-affidavits are filed, is largely a matter of discretion with the trial court. He is more able to appraise the situation than we are. Abuse of discretion does not appear. Croft v. Chicago, R. I. & P. R. Co., 134 Iowa 411, 414-415, 109 N.W. 723; Petty v. Hayden, 115 Iowa 212, 215, 88 N.W. 339; Union Mill Co. v. Prenzler, 100 Iowa 540, 542, 69 N.W. 876; Garrett v. Bicklin, 78 Iowa 115, 116-120, 42 N.W. 621; State v. Stewart, 74 Iowa 336, 338, 37 N.W. 400. See also Faivre v. Mandercheid, 117 Iowa 724, 727-728, 90 N.W. 76.

The note, supra, in 29 Iowa Law Review, at page 110, observes: 'Where opposing affidavits are filed, the court has been reluctant to overrule the trial judge, as in the case when bad newspaper publicity preceded trial.' Citing Alverson v. Anchor Mutual Fire Ins. Co., 105 Iowa 60, 61-64, 74 N.W. 746.

While the cited precedents were decided under the statutes which our Rules of Civil Procedure supersede, we think the rules also contemplate the exercise of the trial court's discretion in such a matter.

II. Before considering other assigned errors it may be well to state the general rules applicable to the case and something of the factual situation.

The three essential elements of such a cause of action are: 1) wrongful conduct of defendant, 2) loss of affection or consortium of plaintiff's spouse, and 3) causal connection between such conduct and loss. Actual intent to alienate is not necessary if defendant's conduct is inherently wrong and tends to and does have the effect complained of. Rank v. Kuhn, 236 Iowa 854, 857, 20 N.W.2d 72, 74, and citations; Koehler v. Koehler, 248 Iowa 144, 151, 79 N.W.2d 791, 796; Kiger v. Meehan, 253 Iowa 746, 750, 113 N.W.2d 743, 746.

In the absence of evidence to the contrary it is presumed husband and wife have affection for each other. Glatstein v. Grund, 243 Iowa 541, 545, 51 N.W.2d 162, 166, 36 A.L.R.2d 531, and citations; Kiger v. Meehan, supra. Also, less proof is required to support such an action against a stranger than against a parent of the spouse. Ibid. This is because of the parent's right to advise a married child as to his welfare, including domestic affairs.

III. Plaintiff and his wife were married in 1938. Four children were born to them. The second child died at age three. The oldest is married and lives in California. The two younger ones lived at home. Plaintiff and his wife finally separated October 30, 1961. About September 9, 1961, the wife Gelenne sued for divorce. Reconciliation was attempted, they resumed living together for a time and Gelenne dismissed the divorce action. After the final separation she commenced another such action. We understand it was still pending when the present action, commenced February 28, 1962, was tried in January 1963. Gelenne's attorney was a member of the firm representing defendant in the present action. In December, 1961, plaintiff went to southern California but returned to Mahaska county occasionally in 1962.

Plaintiff and his wife lived most of the time in New Sharon but some of the time in Oskaloosa, 12 miles to the south, where defendant also lived. Plaintiff was a contractor and builder and did a good deal of construction work for defendant in the ten years commencing in 1951. From 1958 Gelenne worked at least parttime in Oskaloosa.

There is little doubt Gelenne had lost her affection for plaintiff when they finally separated. Plaintiff claims, supported by substantial evidence, this was caused by defendant's wrongful conduct. Gelenne maintains, and substantial evidence supports her, loss of her affection for plaintiff was caused by the latter's mistreatment of her. Defendant was not a witness. Gelenne obviously favored him rather than her husband.

An attorney, who appeared for defendant before his motion for new trial was filed and also in this court, appeared for Gelenne at the trial although she was not a party to it. When plaintiff's counsel questioned her as his witness the attorney objected for her to most of the questions on the ground the answers might incriminate her. Most of the objections were sustained. Because of this and defendant's failure to testify, there is no denial of much of the testimony for plaintiff as to defendant's frequent association with Gelenne and wrongful conduct reasonably calculated to alienate her affection for her husband.

IV. Defendant's second assigned error is that he was unduly limited in cross-examining plaintiff, Gelenne and five other witnesses for plaintiff and, it is said, denied the right to cross-examine plaintiff's witness Kelderman.

Except as to plaintiff himself and Kelderman, defendant's assignment of error and argument wholly fail to comply with the requirements of rule 344(a)(4) (First) (Second) and (Third), R.C.P. Nowhere are there 'references to the pages and lines of the record, sufficient to show fully the the manner in which the error arose and the ruling of the trial court thereon.' Counsel's statement that to set out the claimed error 'specifically would require reiterating the entire record' is not warranted. Less then two pages of argument are devoted to this claim of error as to all witnesses other than plaintiff and Kelderman. Notwithstanding this lack of compliance with the rule we have, as a matter of grace, considered the assigned error.

As to one of the named witnesses no objection was made to defendant's cross-examination and no limitation was imposed. As to another, only one objection was made. It was properly sustained as repetitious. As to a third, the witness fully answered at another point in the cross-examination the principal questions to which objections were once sustained--as to how intimate the witness' acquaintance with defendant was. As to two other witnesses we find no abuse of discretion in ruling on objections to questions asked on cross-examination. Direct testimony of three of the witnesses referred to was for a limited purpose only. The trial court so informed the jury and defendant's counsel expressed agreement with the court's admonition.

Defendant's argument refers to some rulings he contends unduly limited his cross-examination of plaintiff. Plaintiff was asked if Gelenne's sister, Donna Woods, in a conversation shortly after the first divorce suit was commenced, 'did not outline a series of acts of which you had been guilty toward your wife which she said in substance she felt your wife should leave you for.' The court ruled the question was not cross-examination. We find no direct testimony of plaintiff...