Cramer v. Cramer

• Decision Date: 12 May 1919
• Docket Number: 14972.
• Parties: CRAMER v. CRAMER et ux.
• Court: Washington Supreme Court

180 P. 915

106 Wash. 681

CRAMER v. CRAMER et ux.

No. 14972.

Supreme Court of Washington

May 12, 1919

Department 1.

Appeal from Superior Court, Spokane County; Bruce Blake, Judge.

Action by Blanch Cramer against William Cramer and Rachel Cramer husband and wife. From judgment for plaintiff, defendants appeal. Reversed.

J. S McDonald, of Cheney, and C. T. McDonald and Del Cary Smith both of Spokane, for appellants.

Crandell, Williams, & Crandell, of Spokane, for respondent.

MITCHELL J.

Respondent has been divorced at the suit of her former husband, Miles Cramer, on the ground of abandonment, since the present action was commenced by her to recover damages from appellants for alienating the affections of her husband. Appellants are husband and wife and parents of Miles Cramer. The cause was tried by the court and a jury, resulting in a verdict and judgment in favor of respondent, from which this appeal is prosecuted.

A number of errors are assigned that are grouped into five points, as follows:

(1) The refusal of the court to give a requested instruction. In writing appellants requested an instruction to the effect that parents have the right in a moderate, intelligent, and careful manner to advise a son as to his domestic affairs, even as to his living with his wife, and that, if given in good faith and from worthy motives, the wife may not complain even though the advice contribute in some degree to the result of causing a separation. Continuing, the requested instruction called attention to the distinction between the case of a stranger to the blood and that of parents to the effect that in the latter conduct and advice are presumed to be good, and a clear case of want of justification must be shown before parents can be held responsible. The court gave the first part of the requested instruction, but refused the latter portion. Appellants at that time took an exception in writing to the refusal to give the requested instruction, and this court held in the case of Radburn v. Fir Tree Lumber Co., 83 Wash. 643, 145 P. 632, that the last sentence in section 339, Rem. Code, as to the manner of taking exceptions to instructions given, is equally applicable to the refusal of the court to give requested instructions. We think the refusal of the requested instruction was reversible error. Although disputed, there was substantial evidence to show appellants had in various ways attempted to counsel and advise their son against respondent's relations with him, including threats to him of disinheritance and frequent efforts to keep him at their home and away from respondent.

It is not enough to advise the jury simply that their belief in the good faith of the parents is sufficient to warrant a verdict in their favor. When requested, the jury should be directed how to proceed in determining their good faith or lack of it. If there is a presumption in favor of good faith carrying its companion of a burden imposed upon him who assails it, and there is, it is important the jury should be so instructed. The appellants had a right to a direct and positive instruction upon this matter. The reason of the rule of good faith spoken of exacts the presumption which exists. In the case of Stanley v. Stanley, 27 Wash. 570, 68 P. 187, this court said:

'There is a wide distinction between an action by husband or wife against the parent of either and one against some stranger who invades the domestic circle and separates husband and wife.'

The court quotes with approval from Tucker v. Tucker, 74 Miss. 93, 19 So. 955, 32 L. R. A. 623, as follows:

'In every suit of this character, the prime inquiry is: From what motive did the father act? Was it malicious, or was it inspired by a proper parental regard for the welfare and happiness of his child? The instinct and the conscience unite to impose upon every parent the duty of watching over, caring for, and counseling and advising the child at every period of life, before marriage and after marriage, whenever the necessities of the child's situation require or justify such action on the parent's part. The reciprocal obligations of parent and child last through life, and the duty of discharging these divinely implanted obligations is not, and cannot be, destroyed by the child's marriage. * * * The question always must be: Was the father moved by malice, or was he moved by proper parental motives for the welfare and happiness of his child?'

1 Cooley on Torts (3d Ed.) p. 468, says:

'A clear case of want of justification may be justly required to be shown before they should be held responsible.'

That the burden of proof is heavier in this kind of action than some other kinds of civil actions see Brison v. McKellop, 41 Okl. 374, 138 P. 154; Hossfeld v. Hossfeld, 188 F. 61, 110 C. C. A. 131.

The Supreme Court of Iowa, in the case of Busenbark v. Busenbark, 150 Iowa, 7, 129 N.W. 332, says:

'The law is tender of the parental relationship. The parent has the liberty of extreme solicitude for the welfare of the child even after marriage, and may advise freely and frequently and even foolishly. His good faith will be presumed until the contrary is made to appear. Corrick v. Dunham, 147 Iowa, 320 ; Heisler v. Heisler (Iowa) 127 N.W. 823, and authorities cited therein.'

The case of Cornelius v. Cornelius, 233 Mo. 1, 135 S.W 65, was one in which a woman sued her father-in-law for the alienation of her husband's affections. The opinion sets out an instruction requested by the defendant...