De Ford v. Johnson

• Decision Date: 02 January 1911
• Citation: 152 Mo. App. 209,133 S.W. 393
• Parties: DE FORD v. JOHNSON.
• Court: Missouri Court of Appeals

133 S.W. 393

152 Mo. A. 209

DE FORD v. JOHNSON.

Kansas City Court of Appeals. Missouri.

January 2, 1911.

1. HUSBAND AND WIFE (§ 326)—ENTICING AND ALIENATING RIGHT OF HUSBAND.

As the law jealously guards the marital relation, a husband who has forgiven his erring wife is as much protected from any one who might seek to make her the subject of his lustful desires as if she had never fallen.

2. HUSBAND AND WIFE (§ 324)—"ALIENATION OF AFFECTIONS"—NATURE.

The action of a husband for the alienation of his wife's affections extends to all wrongful interference by others, causing a wife to leave her husband or do things destructive of marital happiness, the gist of action being the enticing of the wife and alienation of her affections, and not depending on the debauching of the wife, but neither her voluntary bestowal of affections upon one who did nothing wrongful to gain it, nor her intercourse with one who did not seduce her, will support the action.

3. HUSBAND AND WIFE (§ 326)—ALIENATION —DEFENSES.

Lack of affection between husband and wife is no defense to an action for alienation of a wife's affections; third persons having no right by their interference to eliminate the possibility of future affection.

4. HUSBAND AND WIFE (§ 333)—ALIENATION —DAMAGES—MITIGATION.

Lack of affection between a husband and wife may be shown in an action for alienation of wife's affections in mitigation of damages.

5. HUSBAND AND WIFE (§ 335)—ALIENATING — INSTRUCTION — APPLICABILITY TO EVIDENCE.

In an action for the alienation of the affections of plaintiff's wife, there was evidence that defendant was not an enticer, but that the wife was a moral pervert, and practically a prostitute. The trial judge disregarded all instructions offered by counsel, and on his own motion gave one purporting to cover all issues, but which disregarded defendant's contention that the wife was a pervert and not enticed, and charged the jury that, even though plaintiff's wife was guilty of infidelity with other men, he was entitled to forgive her and seek her affections without interference by defendant. Held, that the charge was erroneous in not submitting the issue of the wife's practices to the jury, and because, under the circumstances, it in effect directed a verdict for the plaintiff, even if the illicit relations between his wife and her paramours were ordinary acts of prostitution, forgiven as fast as they occurred.

6. HUSBAND AND WIFE (§ 326)—ALIENATING AND ENTICING—DEFENSES—PROSTITUTION.

The rule that a man may forgive his erring wife will not support a lawsuit by a husband who has lived with a prostitute wife without objection until having a chance to enrich himself by suing one of her paramours.

7. TRIAL (§ 278)—INSTRUCTIONS—OBJECTIONS —GENERAL OR SPECIFIC.

The purpose of objections to instructions being to give the court an opportunity to correct error, it may demand specific objections.

8. APPEAL AND ERROR (§ 232)—OBJECTIONS—SPECIFIC OBJECTIONS TO INSTRUCTIONS—PRACTICE.

Where the lower court has requested specific objections to instructions, general objections will not be considered on appeal, but this will not prevent a defeated party from having errors reviewed, where his objection, though informal, was understood. Thus where the trial court understood a defeated party's objection, both at trial and on motion for new trial, that objection will be reviewed.

9. APPEAL AND ERROR (§ 232)—PRESENTATION IN LOWER COURT—OBJECTIONS—SPECIFIC OBJECTIONS—CONSTRUCTIONS.

Specific objections to instructions will be liberally construed, and, if the objection is clear, will be considered on appeal, no matter how crude.

Appeal from Circuit Court, Jackson County; Herman Brumback, Judge.

Action by Peter De Ford against Isaiah Johnson. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Ben T. Hardin, for appellant. Bird & Pope, for respondent.

JOHNSON, J.

The cause of action alleged in the petition is that defendant wantonly, wrongfully, and wickedly alienated the affections of the wife of plaintiff, and thereby caused plaintiff to separate from her. Both actual and punitive damages are prayed. The answer is a general denial. Verdict and judgment were for plaintiff for $5,000 actual and $500 punitive damages, and the cause is here on the appeal of defendant.

Plaintiff was an illiterate farmer, born and reared near Sibley, in Jackson county. When a young man, he moved to the state of Washington, where, about 17 years ago, he was married at the age of 23. Two children, both girls, were born of the marriage. In time he moved with his family to Iowa, and afterwards moved from that state to Jackson county, where he rented a farm from defendant, a farmer living near Sibley, and remained a tenant of defendant five or six years. Then he sold out his personal effects, and moved with his family to Grangeville, Idaho. Asked his reason for moving to Idaho, he testified: "I call it he (defendant) got too smart and tried to run me too much, and knowed more'n I did about my business, and always told my wife what ought to be done and what out not to be done to my wife." Correspondence was maintained between plaintiff and defendant after the removal of plaintiff. The letters of defendant were read to plaintiff by his wife, and under cover of this correspondence defendant wrote letters to Mrs. De Ford. As plaintiff could not read, a clandestine exchange of letters between his wife and defendant was carried on in safety for a time. Under pretext of business, defendant went to Idaho and visited at plaintiff's home a number of days. He returned to Missouri, and resumed his secret correspondence with Mrs. De Ford. While living in Missouri, plaintiff twice had occasion to complain of the conduct of defendant towards his wife, and we think his evidence bears out his contention that he moved to Idaho to separate his wife from the attentions of defendant. His suspicions were not allayed by the visit of defendant to his home in Idaho, and finally they prompted him to make a secret and successful search of his wife's trunk for letters from defendant. He had the bundle of letters he found there read to him, and discovered from their salacious and historical effusions and statements that an adulterous relation had existed between defendant and Mrs. De Ford, which began some time before the hegira to Idaho. On this discovery, plaintiff left his wife, came to Missouri, and brought this suit. The evidence of plaintiff tends to show that prior to the beginning of defendant's attentions to Mrs. De Ford she was a good wife and mother, and that, after she came under defendant's pernicious influence, she lost her affection for her husband, and that the change wrought in her demeanor was so marked as to arouse his suspicion. As is usual in such cases, defendant's efforts were directed to prove that Mrs. De Ford was unchaste and dissolute before he began his attentions to her. The evidence adduced in support of his contention is substantial, but we find it is met by substantial evidence to the contrary introduced by plaintiff. Further, there is evidence tending to show that plaintiff and his wife conspired to ensnare defendant, who is married, has grown children, and is possessed of some wealth, and that plaintiff, guilty as his spouse, is playing the false role of an injured and innocent husband. But this, likewise, is contradicted by substantial evidence.

We have stated enough of the facts to afford a proper understanding of the issues. The details of the evidence are too indecent and disgusting for repetition. At the close of the evidence, all the instructions asked by the parties were overruled, and, on...