Cornelius v. Cornelius

• Decision Date: 28 February 1911
• Citation: 233 Mo. 1,135 S.W. 65
• Parties: CORNELIUS v. CORNELIUS.
• Court: Missouri Supreme Court

135 S.W. 65

233 Mo. 1

CORNELIUS v. CORNELIUS.

Supreme Court of Missouri, Division No. 1.

February 28, 1911.

1. HUSBAND AND WIFE (§ 333)—ALIENATION OF AFFECTIONS — PRESUMPTION OF GOOD FAITH.

A father who induced his son to abandon his wife on the ground of alleged misconduct of the wife is entitled to the presumption that he acted in good faith in making the charges against the wife, which presumption must be overcome by the wife in order to warrant recovery for alienation of the affections of her husband.

2. HUSBAND AND WIFE (§ 335)—ALIENATION OF AFFECTIONS—EVIDENCE—INSTRUCTIONS.

Where, in an action by a wife against her father-in-law for causing her husband to separate from her by means of slanderous statements affecting her character, and the threat to disinherit the son unless he left her, the evidence showed that defendant had made charges against the character of the wife, based on occurrences in his presence, and had threatened to disinherit the son unless he left her, the refusal to charge that the law presumed that the father acted in good faith and from proper motives, and that plaintiff must establish by a preponderance of the testimony that the advice given by defendant to his son was not given in good faith, but through malice, was erroneous, and merely charging that it devolved on the wife to establish that defendant was actuated by malice in what he did was not sufficient.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Maggie Cornelius against Benjamin F. Cornelius. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Charles F. Strop and James W. Boyd, for appellant. Allen, Gabbert, Mitchell & Martin (Perry S. Rader, of counsel), for respondent.

LAMM, J.

Sued for alienating the affections of her husband and separating him from her, defendant appeals from a judgment of $15,000 in favor of Maggie Cornelius. There were two trials and two verdicts. The first (for the same amount) was set aside.

In so far forth as the material averments of the petition are drawn in question, such question arises on the scope of plaintiff's first instruction. Therefore those averments and the instruction will presently be considered together. Emmett Cornelius is the husband of plaintiff, and the only child of defendant. Defendant's answer admits such relationship, and "denies each and every other allegation of plaintiff's petition." Maggie Cornelius, née Bigham, married to Emmett in 1902, was say 27 years and he 38. While not close neighbors, yet they were neighbors, when living on farms in the region of St. Joseph. They were old acquaintances, their families of the same religious faith, and members of the same church. At the time of the marriage defendant was a widower, aged three score. He had moved from his farm to the city of St. Joseph, where he owned property and had an interest in a business. Among other pieces of property he owned a dwelling on Mulberry street. The record shows inferentially that he was in comfortable circumstances, but the extent of his estate is dark. Plaintiff, her husband, and defendant lived in the Mulberry street dwelling as a home. A baby was born to her—aged two years at the time of the separation. The family establishment was modest. Plaintiff kept house, doing the housework. The testimony bears the construction that Emmett provided for the table, defendant for repairs, taxes, gas, and water rates, and that he and his son had a common purse. Sometimes Emmett was employed, earning an income at one place and another; sometimes he was employed by his father to look after his affairs and property. Enough appears to show that, while the son had some money of his own earning and was his own man, yet he depended on his father to an extent, abode with him, and the relations of the two were those natural to an affectionate father and only son where the son chose to remain subordinate after reaching man's estate. In October, 1905, Emmett separated from his wife and child. He and his father left her and the house on Mulberry, the father presently giving her the key and ordering her to take her belongings away and return the key. This she did shortly. Since then she has lived by her needle, and her husband, having put her away, lived apart from her.

Defendant challenged the sufficiency of the evidence to make a case against him. To that end, at the close of the whole case, he asked a mandatory instruction, which was refused. He saved the point, and assigns it for error. When that assignment is reached presently, its determination seeks other material facts then to appear. In effect the errors assigned are: First. There is no substantial evidence to support the verdict (and herein of the mandatory instruction). Second. Incompetent and illegal testimony was admitted for plaintiff. Third. The court gave improper instructions for plaintiff, refused proper instructions for defendant, and made improper modifications of defendant's instructions (and herein of instruction 18, said to be given by the court sua sponte). Fourth. The verdict was excessive and the clear product of bias and prejudice. Of these, seriatim:

1. Of the mandatory instruction.

Whether there was error in its refusal turns on other facts presently stated. In ruling on a mandatory instruction for a defendant in the nature of a demurrer, it is a precept that defendant's evidence fills no office in so far as it contradicts plaintiff's. Contradictions are for the jury. On a demurrer, plaintiff's evidence is taken as true. Hence we may omit defendant's contradictory testimony. Defendant sought to break down plaintiff's credit as a witness by evidence tending to show she had made contradictory statements at a former trial, and that the stenographer's notes at that trial showed she had omitted material facts she vouched for at the last. But we need take no heed of that kind of proof. It went to her credibility, to the weight and quality of her testimony; i. e., was for the jury, not us. Certain material testimony on plaintiff's behalf was objected to as privileged communications. It was admitted, and counsel saved the point. Because of a conclusion reached, to be announced further on, we shall take that testimony as competent in ruling on the present assignment of error. Assuming facts stated at the outset and plaintiff's evidence as true, and proceeding to deal with the case made by plaintiff as strenghthened by admissions of defendant or by testimony of defendant of that tendency, in substance, the further facts are these:

Plaintiff and her husband lived in apparent marital felicity from their marriage down to the summer and fall of 1905. There was not a "ripple" to use a record word. For aught that appears, he did his duty as a husband and she hers as a wife with full fidelity. Up to the separation the record is barren of a vestige of testimony tending to show that her husband at any time took the initiative in formulating charges against her or had any grievance against her of his own making, or she against him of hers. The unhappiness that came to the two was (as far as disclosed) because the husband at the end took color, edge, and action from the charges of his father, the defendant, against her. Hard by the Mulberry dwelling lived one Marker—a married man with a young family, an acquaintance of defendant and Emmett Cornelius of long standing. So far as this record shows, Marker was a man respectable in character, habit, and pursuit. Plaintiff knew him and his family only after she was married and moved to Mulberry street. The Cornelius family had a milch cow—the Marker's none. For months prior and after the event we are about to relate, the Markers got milk of a morning from plaintiff. One morning Marker came to the kitchen door for milk. If he ever came before, it was but once or twice, and he certainly never came again. At that time defendant, not feeling well, was in his room, opening into the kitchen through a door. Plaintiff's baby, then learning to walk, appeared at this door, and was about to fall down the step into the kitchen. Marker asked for his milk. Plaintiff went out on the porch to get it. There was a grocer there to take plaintiff's order for groceries, and Marker utilized the time to give his own order; both families being customers of the grocer. At about that time Marker noticed the danger to the child and went to it. Defendant then saw him, and, stopping to make no inquiry, resented his presence. He got up, seized a stove lift or poker, ordered Marker from the house by a threat to "hurt him and hurt him bad" if he did not go. Plaintiff, hearing this explosive and angry threat, came in from the porch, got (or was going) between the two men, and made an exclamation. Thereat defendant turned on her, and said: "Stand back or I will hit you." This was in the spring. During that spring defendant had a sick spell. He was not over it at the time, and there is testimony that during this indisposition he formed a dislike for her, and thenceforth she could not please him. If she would "ask him anything, he would not tell her." Things ran on till October of that year. It seems the kitchen floor was covered with linoleum. About the sink it was damp, and rats bothered. Defendant put a patch of tin over a rat hole, and lifted the linoleum, putting a broomstick or other stick of wood under it to hold it up to dry the floor—all this in the absence of plaintiff. Plaintiff presently, with her baby came into the kitchen to cook a meal. The child stumbled over the rise in the linoleum, and bumped its head on the stove. Thereat the anxious mother took out the stick to smooth the floor, and put it in a corner. Soon defendant came in, and made discovery that the stick was gone, and the linoleum flat on the wet place. He asked plaintiff: "Who took the stick out from under the linoleum?" She said, "I did," and went on to say she would put it back after dinner. He retorted...