Clark v. Orr

• Decision Date: 03 March 1937
• Citation: 173 So. 155,127 Fla. 411
• Parties: CLARK v. ORR.
• Court: Florida Supreme Court

173 So. 155

127 Fla. 411

CLARK v. ORR.

Florida Supreme Court

March 3, 1937

Rehearing Denied March 24, 1937

Error to Circuit Court, Dade County; Worth W. Trammell, Judge.

Suit by Gladys T. Orr, by Charles L. Rakowsky, her next friend against Doty Clark, sometimes known as Dottie Clark sometimes known as Dot Clark, sometimes known as Dorothy Clark. To review a judgment awarding $25,000 damages to plaintiff, the defendant brings error.

Affirmed on condition of remittitur.

COUNSEL

Paul C. Taylor, of Miami, for plaintiff in error.

Casey &amp Walton, of Miami, for defendant in error.

OPINION

BUFORD Justice.

This case is before us on writ of error to a judgment awarding $25,000 actual damage to the plaintiff Gladys T. Orr for the alienation of the affection of her husband, Morrison Orr.

The verdict specifically stipulated as follows:

'We further find that she is entitled to punitive damages, and assess such punitive damages at $None.' This, we shall refer to later.

The suit involves the conduct of one man, the alleged alienated husband, the complaining wife, and the other woman. The record discloses a rather sorry picture. Morrison Orr, the bond of contention, was the third husband of the plaintiff. The implication from the record is that she was divorced from husband No. 1. The positive showing is that she was divorced from husband No. 2.

The record further shows that there existed ample grounds for divorce on behalf of both the plaintiff and her husband before the institution of this suit.

The records shows that all three parties were not imbued with any high degree of regard for morals or marital obligations. Mr. Orr appears in the role of one of those social parasites, the bankrupt son of rich and inculgent parents, spending his time in idleness and unprofitable adventure, living upon the charity of indulgence of a devoted mother, and, although being a married man and a father, spending much of his time in indulging the indiscretions of the libertine.

The evidence disclosed by the record shows the plaintiff in but little, if any, better light. The record shows that she, although three times a married woman and the mother of children, held none too sacred the marriage vows, received attention from men promiscuously, associated with them under the most intimate conditions.

The defendant, plaintiff in error here, is shown by the record to entertain no high regard for the proprieties or for that high standard of morals which, regrettably, is more praised than practiced. The record is clear that she indulged in an unholy alliance and association with the plaintiff's husband, Morrison Orr. Whether she or he was the aggressor, whether she or he took the initiative which resulted in a mutual wrongful association to the prejudice and injury of the plaintiff, is not clearly shown by the record.

Plaintiff in error has presented 5 questions. They are as follows:

1. 'Did the Court err in denying the motion for directed verdict made on behalf of the defendant, made at the termination of plaintiff's case, and renewed at the termination of the trial?'

2. 'Can the plaintiff testify concerning, and relate statements made to her, the plaintiff, by a person not a party to said action, not made in the presence of the defendant, and which statements are greatly prejudicial to the defendant?'

3. 'In an action to a wife for the alienation of her husband's affections, is a verdict for $25,000.00 actual damages excessive when punitive damages were expressly denied by a jury, and where there has been no proof of actual damages or loss to the plaintiff?'

4. 'In an action for alienation of affections, is the question whether the plaintiff is married to her alleged alienated spouse essential to the maintenance of the action?'

5. 'Can a plaintiff, in an action for alienation of her husband's affections, allege in her declaration that the defendant did, willfully, absolutely and entirely alienate, estrange and destroy the affections of Morrison Orr from the plaintiff, and prosecute said action to final judgment, while she, the plaintiff, is prosecuting a similar action, with the same allegations, against a person not a party to the first action?'

The first question may be passed over with the comment that it does not comply with rule 20, and that there was sufficient evidence to go to the jury, and, therefore, there was no reversible error in the action of the court denying motion for directed verdict in favor of the defendant.

The second question is predicated upon the action of the court in allowing the witness Gladys Orr, in response to the question, 'When you went to Chicago at the request of Mr. Orr on the occasion you were testifying about yesterday, did he at that time tell you that he had been in Chicago with the defendant, Mrs. Clark?' to testify that Mr. Orr did tell her that he had been in Chicago with the defendant at the home of the Grants for about two and a half weeks. The question was objected to because the answer elicited would be hearsay and motion to strike the answer was made on the same ground and the motion denied.

While we have found some cases in which it appears that such latitude was allowed, we think the rule stated by the Supreme Court of Oregon in Mumper v. Webster, 137 Or. 554, 3 p. (2d) 753, 82 A.L.R. 822, as follows:

'Plaintiff in an action for alienation of affections may show declarations made in the absence of defendant by the deserting spouse where such declarations tend to show the effect produced upon the mind of the deserting spouse by the conduct of the defendant, and the motives, feelings, and emotions which prompted the desertion, provided that such declarations were made at or about the time of the separation and during the period of alienation, and were the natural and spontaneous verbal manifestation of an emotion and indicative of the feeling that inspired it.

'Declarations of a deserting husband, after the desertion, to the effect that his mind had been poisoned against his wife by a certain woman, not made in the presence of such woman, are inadmissible in an action by the wife against her for alienation of the husband's affections.' is sound, and we find it supported by ample authority. Veal v. Conn, 215 Ala. 90, 109 So. 754; Barlow v. Barnes, 172 Cal. 98, 155 P. 457; Davis v. Butler, 198 Ky. 795, 250 S.W. 126; Bevers v. Bradstreet, 170 Ark. 650, 280 S.W. 667; Zingg v. Mitterer, 200 Iowa, 403, 204 N.W. 247; Coates v. Slusher, 109 Or. 612, 122 P. 311.

It appears that the court allowed this testimony to be introduced upon the theory that the evidence was admissible as tending to show the effect produced upon the mind of the deserting spouse by the conduct of the defendant and the motives, feelings, and...