Eklund v. Hackett

• Decision Date: 01 April 1919
• Docket Number: 15170.
• Citation: 179 P. 803,106 Wash. 287
• Court: Washington Supreme Court
• Parties: EKLUND v. HACKETT.

179 P. 803

106 Wash. 287

EKLUND v. HACKETT.

No. 15170.

Supreme Court of Washington

April 1, 1919

Department 2.

Appeal from Superior Court, Grays Harbor County.

Action by Peter Eklund against H. B. Hackett.Judgment for defendant, and plaintiff appeals.Reversed, and new trial granted.

W. H Abel, of Montesano, and Martin F. Smith, of Hoquiam, for appellant.

L. H Brewer, of Hoquiam, and J. B. Bridges, of Aberdeen, for respondent.

PARKER J.

The plaintiff, Eklund, commenced this action in the superior court for Grays Harbor, seeking recovery of damages which he claims to have suffered from the wrongful alienation of the affections of his wife by the defendant Hackett.The trial resulted in verdict and judgment in favor of the defendant, from which the plaintiff has appealed to this court.

The facts, in so far as we need here notice them, may be summarized as follows: Appellant, Eklund, and Elizabeth Varchmin were married in September, 1915.They established their home at Hoquiam, and were living in a rented house there at the time of the trouble here in question.About May 4, 1916, respondent, Hackett, went to the house in which Eklund and his wife were living, to hang paper and decorate its walls for the owner.This was the beginning of Hackett's acquaintance with Mrs. Eklund.Soon thereafter their acquaintance grew intimate, and there is evidence in the record tending to show that there occurred acts on the part of Hackett and Mrs. Eklund of a highly improper nature wholly at variance with proper conduct between a man and another man's wife; that they were frequent, and for the most part occurred at the Eklund home, during the absence of Eklund; and that Hackett and Mrs. Eklund soon became lovers, and had by August or September, 1916, formed the intention of being married to each other as soon as a legal separation of Mr. and Mrs. Eklund could be effected and the law would permit.In September, 1916, Mrs. Eklund was granted a divorce from Eklund, upon just what grounds the record does not clearly show, but evidently without resistance on the part of Eklund.Soon thereafter Mrs. Eklund went to the Hackett home, where she remained some three weeks, though she did not live in the house alone with Hackett.In September, 1917, Hackett and Mrs. Eklund were married.

It is contended in appellant's behalf that the trial court erred in giving to the jury its instructions numbered 5 and 7, reading as follows:

(5)'Should you find and believe from the evidence that plaintiff's wife obtained a divorce from him, and that she made plaintiff's misconduct ground for obtaining said divorce, yet if you believe that, notwithstanding such misconduct on the part of the plaintiff, his wife would not have separated or remained apart from him, or sued him for a divorce, if it had not been for the acts, conduct, and influence of defendant towards her, and that defendant purposely and intentionally, by such acts, conduct, and influence, induced her to so separate or remain apart from plaintiff, or sue him for a divorce, then the fact that plaintiff's wife obtained such divorce on account of plaintiff's misconduct does not, of itself, constitute a complete defense to this action.But if you should find and believe from the evidence that plaintiff's wife acted on her own volition in the institution of said divorce action, and was not influenced by any acts or conduct of the defendant Hackett with reference thereto, and that at the time there was no affection on the part of Mrs. Eklund for Peter Eklund, then you should find for the defendant.'

(7)'You are instructed that, before the plaintiff would be entitled to recover in this case, you must find from a fair preponderance of the evidence, first, that the wife of plaintiff had some affection for him; and, second, that such affection was alienated from him through some conscious act or acts of the defendant Hackett.It is not enough to charge the defendant with liability if the wife of plaintiff alienated her own affections, or if the plaintiff by his own act or acts alienated the same. such alienation, to charge this defendant with the same, must have been brought about by him through acts or undue influence which he then and there did with intent to alienate the affections of plaintiff's wife.'

We have italicized the portions of these instructions particularly to be noticed.

It seems to us that there was error to the prejudice of appellant Eklund in the giving of the italicized language of the fifth instruction.It in effect told the jury that the question of Hackett's liability depended upon whether or not he induced Mrs. Eklund to institute an action for and obtain a divorce, and whether or not, at the time of so doing, there was any affection on the part of Mrs. Eklund for her husband.The instruction ignores and loses sight of the fact that the acts of Hackett may have long before that time effectually alienated her...