Cole v. Johnson

• Decision Date: 21 March 1922
• Citation: 205 P. 282,103 Or. 319
• Parties: COLE v. JOHNSON ET AL.
• Court: Oregon Supreme Court

205 P. 282

103 Or. 319

COLE v. JOHNSON ET AL.

Supreme Court of Oregon

March 21, 1922

Department 1.

Appeal from Circuit Court, Columbia County; J. A. Eakin, Judge.

Suit by Robert Cole against A. Johnson and others. Verdict and judgment for plaintiff, and the defendants appeal. Reversed and remanded for new trial.

This is an action brought by Robert Cole against A. Johnson, Alice Blackwell, and Lester Williamson to recover damages for the alienation of the affections of Lu Elsie Cole, the wife of plaintiff. A trial resulted in a verdict and judgment for the plaintiff for the sum of $15,500, and the defendants appealed.

Lester Williamson is a brother and Alice Blackwell is an aunt of Lu Elsie Cole. Estes Williamson and Ray Williamson are also brothers of Lu Elsie Cole. Johnson was a fiancé of Lu Elsie for they had been engaged during the period of four years prior to her marriage to Cole on March 7, 1918. Johnson had prepared and furnished a home in Portland, and he and his fiancée were to have been married on March 9, 1918. According to the story of the plaintiff, he proposed to Lu Elsie in January, 1918, for he testified: "We practically had it settled that we would get married in April." The plaintiff lives in St. Helens about 30 miles from Portland and Lu Elsie resided in Portland. On March 1st Lu Elsie addressed a letter to Robert asking him to come to Portland and this letter can be fairly construed to mean an invitation to the plaintiff to come to Portland and to marry Lu Elsie without delay. Robert wrote two letters. These letters are set out in full in Cole v. Cole, 97 Or. 555, 192 P 637. According to the plaintiff, he went to Portland on Sunday, March 3, and saw the defendant, and then returned to St. Helens. On Wednesday, March 6, the plaintiff went from St. Helens to Portland and that night met Lu Elsie, when they drove to Oregon City for the purpose of getting married. It was late at night when they arrived at Oregon City, and, not being able to have the ceremony performed, they returned to Portland, where they remained over night. The next day Thursday, March 7, they again went to Oregon City; but, inasmuch as the plaintiff had no acquaintance there who could make the affidavit necessary to secure a marriage license, they returned to Portland. When the plaintiff and Lu Elsie reached Portland they drove in the plaintiff's automobile directly to the Fobes Supply Company's place of business, where they met C. M. Will and W. C. Foss, who were business acquaintances of the plaintiff. Robert, Lu Elsie, Will, and Foss then went to the courthouse, procured a marriage license, and then drove to the Congregational Church, where the plaintiff and Lu Elsie were married by the pastor of that church. After the marriage the plaintiff and his wife drove to Salem and remained there overnight. The next day, Friday, March 8, the plaintiff and his wife motored through Portland and on to Vancouver, Wash., where they stayed Friday night. The next day, Saturday, March 9, they drove to Hood River, "turned around, and came back" to Portland, registered at the Clifford Hotel, and remained in Portland until Monday, March 11, when they motored to St. Helens, arriving there early in the afternoon. Upon the invitation of Mr. and Mrs. H. F. McCormick, the plaintiff and his wife took dinner with the McCormicks at the latter's residence and remained as guests of the McCormicks over Monday night. The next day, March 12th, the plaintiff found it necessary to go to a place known as the "little mill" to fix a motor. The plaintiff went in his automobile and his wife accompanied him. H. F. McCormick is manager of the St. Helens Lumber Company, and Mrs. H. F. McCormick works in the mill office. The plaintiff and his wife were together most of the time on Tuesday until about 4:30 p. m., when he procured from Mrs. McCormick the key to the McCormick residence and took his wife to the McCormick home and left her there alone with the understanding that he would soon return. The plaintiff had invited the McCormicks to take dinner with him and his wife that evening at a restaurant, and Mrs. Cole knew of the arrangements which her husband had made for dinner.

Lester Williamson, with the assistance of Johnson, arranged with J. Smith of Portland for the use of the latter's automobile. Lester went to St. Helens on a train about noon of the 12th. On the afternoon of the 12th, after his arrival in St. Helens, Lester telephoned to Estes and to Alice Blackwell, with the result that late that afternoon Estes Williamson, Alice Blackwell, and Johnson, together with a chauffeur, motored to St. Helens in the Smith car. Lester Williamson met the Smith car a short distance out of St. Helens. The party in the car drove into St. Helens and stopped the car not far from the McCormick home. Estes and Lester Williamson went to the McCormick residence. Lester rang the doorbell and Mrs. Cole answered the bell. After a short conversation Mrs. Cole and her two brothers left the house and went to the Smith car, and with Johnson, Alice Blackwell, and the driver at once left St. Helens for Portland at a high rate of speed.

A warrant for the arrest of Alice Blackwell, Johnson, and Lester Williamson was issued and delivered to the sheriff of Columbia county. The sheriff left St. Helens about 9 p. m. for Portland. The sheriff was unable to locate either of the three persons in Portland that night.

On March 13, 1918, in Columbia county, Lu Elsie commenced a divorce suit against her husband, alleging in her complaint that she had married Robert under duress. A trial resulted in a decree of dismissal on April 2, 1918. In the record of the instant case this suit is designated as the divorce suit.

On May 25, 1918, in Multnomah county, Lu Elsie commenced a suit against Robert to annul the marriage, alleging that the marriage had been brought about by duress. A trial terminated in a decree of dismissal on October 18, 1918. In the record of the instant case this suit is referred to as the annulment suit.

On April 2, 1918, the plaintiff began this action. In the complaint it is alleged that--

On March 12, 1918, "while plaintiff and his wife were living together happily as man and wife, the defendants wrongfully contriving and intending to injure the plaintiff and to deprive him of the comfort, society, and assistance of his said wife, maliciously enticed her away from the plaintiff and his residence in St. Helens to Portland, Oregon, and have ever since harbored her and caused and influenced and induced her to there remain and live separate and apart from this plaintiff against the consent of this plaintiff."

It is further alleged in the complaint that on March 13, 1918, the defendants induced Lu Elsie to commence the suit for divorce which she began in Columbia county and induced her to charge in her complaint that Robert had by force and duress compelled her to marry him. On April 11 an answer was filed. On October 26, 1918, a supplemental complaint was filed, and two days afterwards, the defendants moved to strike out certain parts of the supplemental complaint and to make the pleading more definite in certain respects. On January 16, 1919, the court denied the motion, except in two particulars. On January 20, 1919, the plaintiff filed an amended supplemental complaint, alleging that since the commencement of the action for damages the defendants instituted in the name of Lu Elsie the suit against Robert in Multnomah county to annul the marriage. The amended supplemental complaint charges that the defendants in this action were instrumental in causing the suit for the annulment of the marriage to be filed, and that they procured Lu Elsie to make false allegations in her complaint in that suit and to testify falsely as a witness in the trial of that suit.

The amended supplemental complaint further alleges that since the commencement of this action the defendants have persistently repeated to Lu Elsie false and slanderous stories about Robert for the purpose of further alienating the affections of Lu Elsie, and have "thereby permanently diverted and alienated the affections, respect and confidence of" Lu Elsie.

The defendants filed an answer to the amended supplemental complaint. The answer to the complaint and the answer to the amended supplemental complaint consisted of admissions and denials.

The assignments of error discussed in the appellant's brief relate to the refusal to grant a nonsuit, alleged misconduct of counsel, the reception and exclusion of evidence, the ruling on the motion against the supplemental complaint, the giving of instructions, and the refusal to give certain instructions requested by the defendants.

G. G. Smith and L. P. Hewitt, both of Portland, for appellants.

Glen R. Metsker, of St. Helens (F. H. Whitfield, of Portland, on the brief), for respondent.

HARRIS, J. (after stating the facts as above).

Defendants severally and jointly moved for an involuntary judgment of nonsuit. The trial court properly refused to grant a nonsuit. There was ample evidence to warrant the jury, if they believed such evidence, in finding in favor of the plaintiff upon every issue raised by the pleadings.

The three letters to which reference has already been made, of themselves, indicate that Robert and Lu Elsie understood that Robert would be in Portland on Wednesday, March 6th, for the purpose of marrying Lu Elsie. If the jury believed the evidence offered in behalf of the plaintiff, the principal facts were as follows: At about 11 o'clock a m. on March 6th, Robert went to the Clyde Hotel in Portland and waited there until about 4 o'clock, when Lu Elsie called him up on the telephone and told him to meet her at Olds, Wortman & King. He met her at the designated...