Claxton v. Pool

• Decision Date: 16 July 1917
• Docket Number: No. 18556.,18556.
• Citation: 197 S.W. 349
• Parties: CLAXTON v. POOL et al.
• Court: Missouri Supreme Court

197 S.W. 349

CLAXTON v. POOL et al.

No. 18556.

Supreme Court of Missouri, Division No. 2.

July 16, 1917.

Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.

Action by Cora Claxton against Mr. and Mrs. L. D. Pool. From judgment for plaintiff, defendants appealed to the Court of Appeals, where said judgment was affirmed. 167 S. W. 623. Cause certified to Supreme Court, and judgment affirmed as against Mrs. L. D. Pool, and reversed as to L. D. Pool.

The petition in this case alleges that the defendant Mrs. L. D. Pool, with the malicious and wicked intent to cause the plaintiff's husband, L. E. Claxton to abandon plaintiff, alienated the affections of the said L. E. Claxton from the plaintiff, and that this was done with the full knowledge and consent of her said husband, L. D. Pool. There was a judgment in the circuit court of Wright county for the plaintiff and against both defendants for the sum of $5,000. The case was appealed to the Springfield Court of Appeals, where the judgment was affirmed as to Mrs. L. D. Pool, and reversed as to L. D. Pool. The case is reported in 182 Mo. App. at page 13, 167 S. W. 623, where a statement of the pleadings and of the evidence relating to the principal issues will be found. Briefly, the essential facts relating to questions presented here are about as follows:

At the time of the trial in April, 1913, the plaintiff was 37 years of age and her husband 5 years younger. They had been married 13 years and had two small children. The defendant L. D. Pool was 51 years, and Mrs. L. D. Pool 46 years, of age. They had been married a number of years, and had reared a family of children, two of whom were grown daughters. All the parties lived in the town of Hartville, Wright county. L. D. Pool was a hardware merchant. Mrs. Pool kept a millinery store. Plaintiff's husband, L. E. Claxton, kept a dry goods and clothing store. Mrs. Pool's millinery store stood near the northeast corner of the square in Hartville, and fronted south. Claxton's store fronted east on the side street leading north from that corner, so that the rear of his store came very close to the rear of Mrs. Pool's store.

L. E. Claxton left his wife and ceased to live with her in April, 1912. About 2 years prior to that date she began to notice that he treated her coolly, and for a year prior to the separation had little or nothing to do with her, except to come to his meals. Claxton made frequent visits to Mrs. Pool's store through the rear door. He said that was the nearest way to the post office. It was said by him and by Mrs. Pool that she fitted clothing which he sold, and which it was necessary to alter in some manner to suit his customers. He hung around her store so much it caused a great deal of gossip. This gossip came to Mrs. Claxton's ears, and she talked to Mrs. Pool about it several times, and requested Mrs. Pool to keep him away, protesting that she was not jealous, but didn't like that talk. On one occasion, about a year before the separation, Mrs. Pool and Claxton were in Springfield at the same time for about 10 days, and came home together. Other incidents are mentioned which aroused plaintiff's suspicions regarding the impropriety of Claxton's visits to Mrs. Pool's store. It was claimed that she was first jealous of Artie Pool, the daughter of Mrs. Pool, who stayed in the store, and that her suspicion of Mrs. Pool was not aroused until a short time before the separation. The climax was reached in April, 1912, when Mrs. Claxton waylaid her husband and Mrs. Pool in Pool's back lot, and thought she saw them both go into the granary which was situated there. Much evidence was offered concerning this incident. A day or two later Mrs. Claxton assaulted Mrs. Pool. Claxton then immediately abandoned his wife and did not return home, except to get his clothing. He left the town, and on subsequent visits there he visited the Pools and was in consultation with them frequently.

Much evidence was introduced, without objection, to show that Mrs. Claxton was of a jealous disposition, and had manifested her jealousy of a number of other women about town at different times before Mrs. Pool was brought under suspicion. We do not see the relevancy of this testimony, except where it was developed in the cross-examination of Mrs. Claxton to show that her own observations and judgment in the premises were not trustworthy. It may have been introduced for the purpose of showing that Claxton was a gay Lothario, never did have much affection for his wife, and therefore she was not damaged by any supposed alienation.

Mrs. Pool, in testifying, made some rather confusing statements about the different incidents of which the plaintiff complained. It was in evidence that she said Claxton did not love his wife, though Mrs. Claxton was violently in love with her husband. It was also shown that Mrs. Pool made a number of statements, after the separation of plaintiff from her husband, indicating a contempt for the plaintiff and a justification of her husband in leaving her. All the evidence shows that the conduct of L. E. Claxton in his treatment of his wife was without excuse and wholly reprehensible; it was conduct which no right-thinking person could possibly approve or apologize for, and Mrs. Pool at least encouraged it.

Other facts relative to the alleged errors assigned for reversing the cause will be considered in the opinion.

J. T. Neville, of Springfield, C. A. Newton, of St. Louis, W. S. Pope, of Jefferson City, F. M. Mansfield, of Hartville, and Argus Cox, of Springfield, for appellants. J. W. Jackson and A. M. Curtis, both of Hartville, for respondent.

WHITE, C. (after stating the facts as above).

I. Appellant assigns error in the failure of the trial court to sustain its motion for new trial on the ground of newly discovered evidence. This newly discovered evidence relates to two or three different incidents:

In the progress of the trial there was evidence that Mrs. Pool had furnished a list of names to the county court in an effort to have the men so listed summoned on the regular panel of jury for the term of court at which the trial was to take place. A witness was produced who identified the list and stated that Mrs. Pool furnished it; the list was then read to the jury—all this without objection from defendants. In their motion for new trial defendants state, and support the statement by affidavits, that two of the names on that list were on the jury which tried the case, and that neither the defendants nor the defendants' counsel discovered that fact until after the verdict was rendered. That was the newly discovered evidence. It is shown in a counter affidavit, and not denied, that the list referred to was handed to defendants' counsel for examination before it was offered in evidence, and, no objection being made to it, it was read to the jury. Defendants' counsel had that list, and the jury list, as well as the jury in person, immediately before them, and failed to discover what ordinary diligence required them to know. One of the two jurors mentioned appended his affidavit, on the motion for new trial, stating that he did not know he was on the list and paid little attention to it when it was read. The trial court cannot be convicted of error for an occurrence of that kind. There was an entire want of diligence shown. McDaniel v. Emmick, 149 Mo. App. 274, 130 S. W. 129; James v. Mutual Reserve Fund Life Ass'n, 148 Mo. loc. cit. 1, 49 S. W. 978; Sang v. City of St. Louis, 262 Mo. 454, 171 S. W. 347.

Another feature of the newly discovered evidence vigorously pressed upon our attention arose in this way: There was evidence offered by the plaintiff tending to show that on one occasion, while plaintiff claimed clandestine meetings were being carried on between Claxton and Mrs. Pool, a note was dropped from the millinery store of Mrs. Pool on the sidewalk and was picked up by L. E. Claxton. This evidence was not objected to until it was in and the witness cross-examined; then on defendants' motion it was stricken out. Defendants after the trial offered affidavits of their counsel to the effect that counsel did not know such evidence was going to be introduced until it was introduced, and did not, until after the verdict was rendered, learn of the existence of evidence by which it could be rebutted. They seek a new trial on the discovery of something which would rebut incompetent evidence presented by plaintiff and excluded by the court on defendants' first objection. The point is not well taken.

II. Appellants claim they are entitled to a new trial because they were prejudiced in the following manner: One Mrs. McBane, a sister of L. E. Claxton, a resident of Carthage, Mo., was produced as a witness for the plaintiff. It appears that Claxton went to her home, or vicinity, when he left Hartville, and she stated that she had seen letters from Mrs. Pool to L. E. Claxton since Claxton had been in Carthage. This was objected to, and objection overruled, but no exception was saved to the ruling. She stated further, without objection, that she came to Hartville with a message and a letter from L. E. Claxton, which she delivered to Mrs. Pool, demanding $50, which Claxton claimed Mrs. Pool owed him. Mrs. Pool admitted she got his money, but said she had spent it. Then the witness stated that she knew of Claxton receiving $40 in gold from Mrs. Pool since he had been in Carthage. This was objected to, objection overruled, and exception saved. Witness then stated without objection that she knew a registered package came to Carthage, that witness herself signed the register book for it, that there was $40 in gold in it, that it came to witness for Claxton, and that she gave it to Claxton. It appears, then, from the bill of exceptions, that upon the objection of the defendants' counsel to this testimony that plaintiff's counsel stated they would follow up the testimony, and show by one Laura Manear...