Darnell v. McNichols

• Decision Date: 16 April 1938
• Citation: 122 S.W.2d 808
• Parties: DARNELL v. McNICHOLS.
• Court: Tennessee Supreme Court

122 S.W.2d 808

DARNELL v. McNICHOLS.

Court of Appeals of Tennessee, Middle Section.

April 16, 1938.

Certiorari Denied by Supreme Court December 17, 1938.

Appeal in Error from Circuit Court, Montgomery County; J. D. G. Morton, Judge.

Action for alienation of affections and criminal conversation by Bailey Darnell against Joe P. McNichols. Judgment for plaintiff for $3,000, and defendant appeals in error.

Affirmed.

Horace B. Stout and C. B. Lyle, both of Clarksville, for plaintiff in error.

A. B. Broadbent and Austin Peay, both of Clarksville, for defendant in error.

FAW, Presiding Judge.

This case is styled in the caption hereof as it appears on our dockets, but, according to the usual practice, it should be styled Joe P. McNichols v. Bailey Darnell, as Joe P. McNichols has brought the case up by an appeal in the nature of a writ of error, and is here complaining of a judgment rendered against him and in favor of Bailey Darnell by the circuit court of Montgomery County, in an action brought by Darnell to recover damages of McNichols for the causes set forth in his (Darnell's) declaration as hereinafter stated.

A jury in the circuit court found the issues in favor of plaintiff Darnell and assessed his damages at $3,000. The defendant filed a motion for a new trial, embracing all the matters upon which he assigns errors in this court, but his motion was overruled by the trial judge, and judgment was pronounced and entered for plaintiff and against the defendant for $3,000 and all the costs of the cause, and a lien was declared on said judgment to secure the reasonable fees of plaintiff's attorneys. The defendant thereupon reserved exceptions to the aforesaid ruling and judgment of the trial court and prayed an appeal in the nature of a writ of error therefrom to this court, which appeal was granted by the court and perfected by the defendant.

For convenience, we will continue to refer herein to the parties as plaintiff and defendant, according to their position on the record below.

The plaintiff's declaration is contained in one count, which is as follows:

"Plaintiff, Bailey Darnell, sued the defendant, Joe P. McNichols, for the sum of Ten Thousand ($10,000) Dollars for damages sustained, and for cause of action says:—

"1. Plaintiff avers that on the 14 day of August, 1909, he, Bailey Darnell, and Miss Mollie Stanfill, were legally married in Montgomery County, Tennessee, and that she was after said date, and is now, the true and lawful wife of the plaintiff; that there has been born to this union eight children, whose names and ages are as follows: Odesie, age 22, Lucy West, age 17 years, Hugh, age 15 years, Edna, age 13 years, Will T. and L. C., twins, age 8 years, J. B., age 16 years, Jimmie, age 2 years; that up and until October __, 1933, his wife Mollie Darnell, and all of said children, except ________, who is married and lives with her husband, lived together at plaintiff's home in District 9 of Montgomery County, Tennessee; that plaintiff is a tenant of the defendant, Joe P. McNichols, and lives on a farm owned by him, situated some four or five miles from where the defendant himself resides; he further avers, that for many years after their marriage, the said Mollie Darnell, made him a good, true, dutiful and devoted wife, and used every means at her command to make their home happy and pleasant, and as the mother of plaintiff's children, she was devoted, always interested in their happiness, comfort and welfare; that during these years of happiness and contentment, he was entitled to, and received from the said wife, every consideration and enjoyed her conjugal society, affection, consortium and association in the fullest degree of a happy union as man and wife.

"Plaintiff further avers, that on or about the first day of January, 1922 the said Mollie Darnell formed an acquaintance with the defendant, Joe P. McNichols, who, wilfully and maliciously resorted to various plans and schemes to entice her affection from him, intending to injure and humiliate plaintiff, and bring him to a low estate and to unbearable grief by wilfully and maliciously depriving plaintiff, of the affection, consortium, association and conjugal society of his said wife. Therefore, poisoned and destroyed her love and affection for him; that the defendant, in his wicked purpose, used money, gifts and other methods to accomplish his adulterous ends and by these methods and schemes he persuaded, overcame and overreached plaintiff's wife, and induced her to become intimate with him, and thus carry on and engage in immoral acts with the defendant, intending to destroy, and did destroy, the home and happy marital relations existing between plaintiff, and his said wife, Mollie Darnell.

"Plaintiff further avers, that the mean, vicious and wilful conduct of the defendant, began about the first day of January, 1922, and that since then he has continued his evil conduct and adulterous designs on plaintiff's wife, and that it is now going on between them; that during the last twelve months preceding the filing of this suit, the defendant, came into plaintiff's home, debauched it and brought him to shame; that after plaintiff had reached the point when he could not further endure, the defendant, persuaded, enticed and caused plaintiff's wife to leave plaintiff's home, and to remove to the defendant's farm, where he lives, and where she now resides, and where she has resided since and before the filing of this suit, all of which has caused plaintiff much agony and mental suffering; that by reason of these wrongful acts, and evil designs of the defendant, plaintiff's home has been wrecked, ruined and absolutely destroyed.

"Wherefore, for the foregoing alleged wrongs and grievances, plaintiff sues the defendant, in damages, for the sum of Ten Thousand ($10,000) Dollars, and calls for a jury to try the issues involved."

To the foreoging declaration, the defendant pleaded the general issue — not guilty.

It is seen that the declaration contains proper and sufficient averments that defendant, by seductive arts, induced plaintiff's wife to engage in criminal conversation with him (defendant) and alienated her affections for plaintiff. There is a distinction between an action for criminal conversation and an action for alienation of affections. It is possible for a cause of action for either to exist without the other. "While an action for alienation of affections and one for criminal conversation are both founded on the injury to the right of consortium they are generally recognized as essentially different. The gravamen or gist of the action where it is for criminal conversation is the adulterous intercourse, and the alienation of affections thereby resulting is regarded as merely a matter of aggravation, whereas the gravamen in the other case is the alienation of the affections with malice or improper motives." 13 R.C.L. p. 1484, sec. 534; see also Stepp v. Black, 14 Tenn. App. 153, 156 and 13 R.C.L. p. 1458, sec. 507.

In view of the distinction above pointed out, it would have been more in accord with the rules of good pleading for plaintiff to state his cause of action for alienation of his wife's affections and his cause of action for criminal conversation in separate counts.

But the defendant went to trial below without objection to the declaration because of duplicity or on any ground, and it will be treated as a sufficient declaration averring both criminal conversation and alienation of affections, with all the incidents attaching to either of these causes of action, in the same manner and to the same extent as if they were stated in separate counts. Middle Tennessee Railroad Co. v. McMillan, 134 Tenn. 490, 504, 184 S.W. 20; American Tobacco Co. v. Zoller, 6 Tenn.App. 390, 394; Grizzard & Cuzzort v. O'Neill, 15 Tenn.App. 395, 401-402; Waggoner v. White, 11 Heisk. 741, 754.

Defendant's first assignment of error is that, "there is no evidence to support the verdict of the jury".

After a careful examination and consideration of the entire record, we are satisfied that there is ample evidence therein upon which the jury could find the issues in favor of the plaintiff — both as to criminal conversation and alienation of affections.

We see no occasion to incorporate in this opinion a summary or review of the salacious and nauseating evidence by which the defendant's guilt of the charges contained in the declaration was proved to the satisfaction of the jury. The question presented by the defendant's first assignment of error, supra, is, whether there is any material evidence to support the verdict of the jury. The statute (Code, § 8811) requiring written findings of fact has no application to a law case tried to a jury, and in such case it is not important that the opinion of this court contain detailed recitals of the facts disclosed by the evidence. An assignment that there is no evidence to support the verdict of the jury presents a question of law, and not a question of fact, and, on certiorari, the supreme court will consider the evidence in the record de novo. Anderson v. Stribling, 15 Tenn.App. 267; De Kalb County v. Tennessee Electric Power Co., 17 Tenn.App. 343, 67 S.W.2d 555; Norman v. Railroad Co., 119 Tenn. 401, 422, 104 S.W. 1088; Mullins v. State & Lumber Co., 155 Tenn. 132, 135, 290 S.W. 975; Whitehurst v. Howell, 20 Tenn.App. 314, 329, 98 S.W.2d 1071.

The defendant's 2nd, 3rd, 4th, 5th, 6th, 7th and 8th assignments contain seven separate excerpts (one in each assignment) from the charge of the court to the jury, and assert that the court erred in so charging the jury; but there is no attempt in either of these seven assignments of error to state "specifically wherein the action complained of is erroneous, and how it prejudiced the rights of the plaintiff in error", as required by Rule 11, subsection 2, of the published Rules of this court.

However, it has been held that such assignments of error may be...