Dunbier v. Mengedoht

• Citation: 230 N.W. 669,119 Neb. 706
• Decision Date: 02 May 1930
• Docket Number: 27109
• Parties: AUGUSTUS W. DUNBIER, APPELLEE, v. CARL MENGEDOHT ET AL., APPELLANTS
• Court: Supreme Court of Nebraska

230 N.W. 669

119 Neb. 706

AUGUSTUS W. DUNBIER, APPELLEE, v. CARL MENGEDOHT ET AL., APPELLANTS

No. 27109

Supreme Court of Nebraska

May 2, 1930

APPEAL from the district court for Douglas county: HERBERT RHOADES JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

In an action by a husband against third parties for the alienation of his wife's affection, a decree of divorce, granted his wife on the ground of extreme cruelty, is not an adjudication or an estoppel by judgment against the husband in favor of such third parties, so as to operate as a bar to his cause of action, although such decree is competent as evidence for other purposes pursuant to the provisions of section 8837, c. 75, Laws 1925.

A husband may maintain an action for the alienation of his wife's affections where the defendant's conduct was the controlling cause of the wife's estrangement although his own misconduct and other causes may have contributed thereto.

" When plaintiff can maintain his cause of action without the aid of an illegal act or one that might be construed as contra bonos mores he will be allowed to recover." In re Estate of Lowe, 104 Neb. 147, 175 N.W. 1015.

Syllabus by the Court.

Where there is evidence that plaintiff participated in certain illegal and immoral transactions not necessary to prove any part of his case, it was not error to refuse to instruct the jury to return a verdict in favor of defendants on account thereof.

In an action where two or more persons are alleged to have formed a conspiracy to wrongfully alienate the affections of plaintiff's wife, cause their separation and divorce, and that, in pursuance of such conspiracy, each did certain acts and by reason thereof did alienate the affections of plaintiff's wife, cause their separation and her divorce from him, the damage done and not the wrongful confederation is the gist of the action.

" Where several defendants are proceeded against as conspirators in the commission of a tort, which would be actionable if committed by one alone, a judgment against one or more of such defendants may be sustained without proof of a conspiracy among all of them." Harvey v. Harvey, 75 Neb. 557, 106 N.W. 660.

Instructions complained of examined, and held that the giving of such instructions was not error.

" The rulings on the admission of testimony cannot be reviewed unless the same were, either by general or specific assignments, called to the attention of the trial court by the motion for a new trial." Flower v. Nichols, 55 Neb. 314, 75 N.W. 864.

Evidence examined and held sufficient to sustain the verdict of the jury.

Appeal from District Court, Douglas County; Rhoades, Judge.

Action by Augustus W. Dunbier against Carl Mengedoht and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Morsman & Maxwell and John A. McKenzie, for appellants.

Lovely & Lovely and O'Sullivan & Southard, contra.

Heard before GOSS, C. J., DEAN, GOOD, THOMPSON and EBERLY, JJ., and FITZGERALD and WILLIAM G. HASTINGS, District Judges.

OPINION

HASTINGS, District Judge.

This action was commenced in the district court for Douglas county, by Augustus W. Dunbier, as plaintiff against Carl Mengedoht, William Mengedoht, Bertha Mengedoht, Max Rapp, and Elsie Rapp, as defendants, to recover damages for the alleged intentional and malicious alienation of the affections of his wife, Augusta A. Dunbier. The defendants, appellants, are the two brothers, stepmother, brother-in-law, and sister of the wife of plaintiff, appellee. Trial was had to a jury and a verdict returned against all of the defendants, assessing plaintiff's damages at $ 5,000. Judgment was entered on the verdict.

The defendant Bertha Mengedoht filed a separate motion for a new trial and the other defendants joined in a separate motion; both motions were overruled. The defendant Bertha Mengedoht has appealed separately and files a separate brief containing separate assignments of error; the other defendants jointly appeal.

The petition in substance alleges that the plaintiff and Augusta A. Dunbier were married on October 12, 1917; that plaintiff at the time of his marriage was a painter of portraits and landscapes; that after his marriage he continued his career as such painter; that sometime prior to January 31, 1924, while plaintiff was living happily and contentedly with his wife at the home of his wife's parents and enjoying her love and affection, the defendants conspired and confederated together with the wicked, malicious and wrongful purpose of interfering with the marriage relation existing between plaintiff and his wife and alienating her affections; that the defendants and each of them, in furtherance of such conspiracy, by means of the acts alleged therein, alienated the affections of plaintiff's wife from him, caused her to separate from and leave plaintiff on the 29th day of January, 1926, and to go to Seattle where the defendant Carl Mengedoht was living, and induced her to file suit for a divorce on the 24th day of May, 1926, and to obtain a decree of divorce from plaintiff on the 11th day of January, 1927.

Defendants by their separate answers allege, as one of their defenses, that on the 24th day of May, 1926, plaintiff's wife brought an action against him for a divorce, and on the 11th day of January, 1927, she was granted a decree of divorce on the ground of extreme cruelty; that said decree is final and was and is a complete defense and bar to plaintiff's cause of action. The right of plaintiff's wife to a divorce was contested by plaintiff. On the trial defendants introduced the divorce decree in evidence. It is contended by counsel for defendants that the decree of divorce is an adjudication between Dunbier and his wife, to the effect that Dunbier's wrongful acts, his cruel treatment of his wife, caused the loss of the love and affection of his wife for him and all rights of the consortium of his wife. In other words, that the decree of divorce obtained against plaintiff by his wife is a complete bar to plaintiff's cause of action against third parties for alienating her affections. The contention is based upon the provisions of section 8837, Comp. St. 1922, as amended by chapter 75, Laws 1925. The amendment was made by adding the following to said section:

"Provided, however, the wife shall be a competent witness against the husband in all prosecutions arising under section 9584, Compiled Statutes of Nebraska for 1922; and either of them may be a witness against the other in any action brought by either husband or wife against a third person, relating to the marriage relationship between such husband and wife, or the interruption of such relationship; and any decree of divorce by one against the other shall be competent as evidence in any action by one of them against a third person relating to such marriage relation or to the interruption thereof or interference therewith."

A determination of the question involved depends upon the meaning to be given to the phrase, "any decree of divorce by one against the other shall be competent as evidence." Unless the rule has been changed by the statute under consideration, the authorities are practically unanimous in holding that a decree of divorce is not a bar to an action by the husband against a third person for the prior alienation of his wife's affections, though the divorce be granted to the wife for the misconduct of the husband; the decree not being res judicata with respect to the husband's cause of action and not operating as an estoppel by judgment. 9 R. C. L. 496, sec. 317; 13 R. C. L. 1468, sec. 518; note, 20 A. L. R. 943.

The decree in a divorce action is only a judgment in rem so far as it effects the status of the parties, and thus far is an adjudication as against the world. As a judgment in rem it is admissible in evidence in this kind of an action to establish the prior existence of the marriage and its dissolution; in all other respects the judgment is in personam and binds only the parties thereto. A judgment in personam is not an adjudication or an estoppel by judgment in favor of strangers. We have held:

"A judgment record cannot be used in favor of a stranger to establish facts recited in the judgment unless such finding is based on an admission made by the party against whom it is sought to be used." Sickler v. Mannix, 68 Neb. 21, 93 N.W. 1018.

And in Hope v. Twarling, 111 Neb. 793, 198 N.W. 161 it is said: "A prior decree of divorce may be admitted in evidence to prove marriage and the severing of conjugal relations, but it is not a former adjudication with respect to the subsequent cause of action and does not operate as an estoppel by judgment."

That case was decided about a year before the statute was amended. The rule announced is in accord with the great weight of authority and is supported by reason. An action for divorce and one for alienation of affections are not the same, nor are they between the same parties. In this case plaintiff's cause of action arose before the commencement of the divorce action. The acts of the defendants complained of could not have been set up as a defense in the divorce action. Plaintiff may have been guilty of extreme cruelty and still the acts of the defendants the controlling cause of the alienation of his wife's affections and their separation. The wife may have had grounds for a divorce and not elected to avail herself thereof, but for the alleged acts of the defendants. The general rule is:

"On the other hand, a husband may maintain an action for the alienation of his wife's affections where the defendant's conduct was the controlling cause which led to the wife's estrangement, although other causes may have contributed thereto. Hence, where cruelty or...