Daniels v. Morris
| Citation | 199 Va. 205,98 S.E.2d 694 |
| Decision Date | 14 June 1957 |
| Docket Number | No. 4659,4659 |
| Court | Virginia Supreme Court |
| Parties | EDWARD L. DANIELS v. MARVIN T. MORRIS, JR. Record |
Oren R. Lewis, for the plaintiff in error.
Paul Lee Sweeny (Lester Wood, on brief), for the defendant in error.
This case is before us upon a writ of error granted Edward L. Daniels to a final judgment of the Circuit Court of Fairfax County, entered on the 16th day of March, 1956, awarding Marvin T. Morris, Jr., the sum of $17,000. The motion for judgment was filed by Morris against Daniels, alleging alienation of affections of appellee's wife, Shirley Alward Morris.
The record discloses that Morris and his wife were married on May 25, 1944; that three children were born to them prior to their separation; that the defendant first came into the life of plaintiff's wife in January, 1950, when he made a down payment of $300 on a 1947 Plymouth automobile for her. Defendant claimed this was a loan but admitted that it had never been repaid. On October 21, 1954, defendant purchased Mrs. Morris a television set and when plaintiff asked his wife where it came from she stated that her mother gave it to her. In addition to the television set, defendant gave plaintiff's wife money on occasions, at one time giving her $100, calling it a loan but admitting it was never repaid.
It was disclosed that plaintiff and his wife had lived a normal life up until the time defendant came into the picture; that they had their 'ups' and 'downs' but had been happily married; that plaintiff loved his wife and she loved him; that since learning of his wife's infidelity and her intimate association with defendant plaintiff's feelings toward his wife were not the same, and Mrs. Morris' feelings toward her husband had changed to such an extent that she wanted a divorce; that from May to December, 1954, during which time, Mrs. Morris was carrying on a constant and intimate association with defendant, she had grown cool and indifferent toward her husband.
When plaintiff and his wife moved into a home at Falls Church defendant secured the telephone number before the listing appeared, whereupon telephone calls began to come to the home from defendant to plaintiff's wife at all hours of the day and night. An argument ensued between plaintiff and his wife over these calls which averaged two per day, resulting in plaintiff's leaving the home and taking up his abode with his mother. A list of long distance calls which had come to plaintiff's home was secured from the telephone company covering a period of six months, the company having destroyed the records of calls antedating that time.
The records showed that one 'Dan Edwards' was calling a 'Mrs. Edwards' at plaintiff's home. It was proved that these calls were made by defendant to Mrs. Morris. They originated at points where defendant had gone on business trips and extended from cities in North Carolina to New Jersey. The evidence discloses that sixteen such calls were made by defendant within a period of sixty days. The calls came collect to plaintiff's telephone and were paid for by defendant without plaintiff's knowledge.
When defendant was in and around Falls Church during the period (1953-1954) he was with plaintiff's wife at every available opportunity.
Plaintiff testified that as a result of his worry over his wife's intimate association with defendant he started drinking to excess and voluntarily went to the Western State Hospital at Staunton for treatment. He remained there from November 4 to December 8, 1954. During plaintiff's stay at Staunton the record discloses that defendant took full advantage of his absence by his continued intimate association with Mrs. Morris. Upon plaintiff's return, the telephone calls continued to come from defendant to his wife.
The record discloses that Mrs. Morris and defendant were seen together at motels and restaurants where rooming facilities were available on many occasions; were frequently together in defendant's automobile, and on one occasion they visited defendant's home in the absence of defendant's wife. The defendant was extremely jealous of Mrs. Morris, and on an occasion while in a jealous rage, he tore the shirt from her back and she was forced to borrow a sweater from a Mrs. Quatman to wear home. On another occasion when they were together at a restaurant he accused her of flirting with soldiers and threw beer in her face.
It was disclosed that matters went from bad to worse until finally plaintiff broke off cohabitation with his wife, she and the children going to her mother's home and he to the home of his mother.
Prior to the filing of the suit Mrs. Morris attempted to dissuade her husband from suing the defendant. She stated that he had so much money that there was nothing plaintiff could do to him.
After the suit was instituted defendant brazenly telephoned plaintiff some thirty times at his mother's home. In one conversation plaintiff accused defendant of having sexual relations with his wife, to which accusation defendant replied, 'I want you to know I never raped anybody in my life'. On another occasion, in May, 1955, defendant telephoned plaintiff and told him that his (plaintiff's) wife was pregnant. On another occasion he telephoned plaintiff and said, 'If you get every penny you asked for I'll still have plenty and I will get you with that'. And on another occasion he threatened to 'frame' plaintiff. None of these telephone conversations testified to by plaintiff was denied by defendant when examined as a witness.
The evidence further shows that defendant's wife did what she could to keep her husband from his acts of infidelity. Suffice to say that the record is replete with evidence showing that defendant was madly infatuated with plaintiff's wife and had broken up not only plaintiff's home but had destroyed the family relationship in his own home.
The questions posed by defendant on this appeal will be treated in the order stressed, the first being:
'Did the trial court err in refusing to grant appellant's motion to strike certain counts of the motion for judgment, and in orally instructing the jury to render three separate verdicts?'
In this connection defendant contends that the motion for judgment contained three counts, 'alleging three separate causes of action', and therefore the court should have sustained his motion to strike Counts I and II. The record does not disclose that defendant moved to strike either Count I or Count II in its entirety. Apparently his motion was limited to striking paragraph (2) of Count II, on the grounds that the paragraph was indefinite and vague and could not be properly answered, 'and on the further ground that the plaintiff has failed to furnish the defendant with the specific dates and places of the alleged misconduct.'
This action was formed in three counts and in the following manner: Count I charged that the defendant committed acts of criminal conversation with plaintiff's wife and alleged alienation of affections as an aggravation thereof. Count II charged alienation of affections solely by acts and association other than criminal conversation. Count III charged solely acts of criminal conversation but did not allege alienation of affections as an aggravation thereof. Each count sought the recovery of both compensatory and punitive damages.
Count I was as follows: 'The defendant, Edward L. Daniels * * * wrongfully, wickedly and unjustly, debauched and carnally knew the said Shirley Alward Morris, then and there still being the wife of the said plaintiff, and thereby the affection of the said Shirley Alward Morris for the said plaintiff was then and there alienated and destroyed, * * *.'
The gravamen of Count II was not criminal conversation but acts of enticement which are alleged to have alienated the affections of plaintiff's wife. Nowhere in this count does the plaintiff charge the defendant with adultery. Here the plaintiff was pleading the several theories of his case in order to meet factual situations that might be disclosed by the evidence at the time of trial. The evidence might have been such as to justify the jury in finding in favor of the plaintiff under Count II and against him under Count I. Conversely, the evidence might have been such as to justify the jury in finding for the plaintiff under Count I and against him under Count II. Or it might have been, as developed, that the jury would find for the plaintiff under both Counts I and II.
Defendant, in his answer and grounds of defense filed prior to trial, moved the court to strike all of Count III, which motion the court overruled on the theory that it was possible for the evidence to be such that the plaintiff would be entitled to recover under Count III of the motion. If for instance the evidence was such that the jury found that the defendant committed criminal conversation with plaintiff's wife, and further found that such acts of criminal conversation did not result in alienating the affections of the wife, the jury could have found for the plaintiff under Count III and against him under Count I. This follows from the fact that alienation of affections is not conclusively presumed to result from acts of criminal conversation, but whether or not it does result is a question of fact to be determined by the jury. As is said in 42 C.J.S., Husband and Wife, § 700 [Pleading], p. 356:
See also Parker v. Gordon, (1st Cir.), 178 F.2d 888, 893; Hargraves v. Ballou, 47 R.I. 186, 189, 131 A. 643.
The latter part of the first question queries: 'Did the trial court err * * * in orally instructing the...
To continue reading
Request your trial
-
Williams v. Com.
...uncertainty, or distortion that may have been created by the cross-examination." Finally, as we noted in Daniels v. Morris, 199 Va. 205, 212, 98 S.E.2d 694, 699 (1957) (quoting, Butler v. Parrocha, 186 Va. 426, 433, 43 S.E.2d 1, 5 The trend of Virginia decisions is to relax the strict rules......
-
Ogilvie v. Mangels
...325 P.2d 434; Pikeville Fuel Co. v. Marsh, 34 Tenn.App. 82, 232 S.W.2d 789; Parrow v. Proulx, 111 Vt. 274, 15 A.2d 835; Daniels v. Morris, 199 Va. 205, 215, 98 S.E.2d 694; and York v. James, 60 Wyo. 222, 148 P.2d The judgment of the trial court is hereby affirmed. PRICE, J., concurs in the ......
-
Weller v. Com.
...and, second, a person, though not a party, who has a financial or other personal interest in the outcome. Daniels v. Morris, 199 Va. 205, 211, 98 S.E.2d 694, 698 (1957); Matthews v. Hicks, 197 Va. 112, 122, 87 S.E.2d 629, 635 (1955); Butler v. Parrocha, 186 Va. 426, 431, 43 S.E.2d 1, 4 (194......
-
Reil v. Com.
...in the trial court. Therefore this Rule must be adhered to unless the exceptions therein stated apply.' See also Daniels v. Morris, 199 Va. 205, 98 S.E.2d 694 (1957); Gooch v. City of Lynchburg, 201 Va. 172, 110 S.E.2d 236 (1959); Melvin v. Commonwealth, 202 Va. 511, 118 S.E.2d 679 The exce......