Fronk v. Fronk

• Decision Date: 04 December 1911
• Citation: 141 S.W. 692,159 Mo. App. 543
• Parties: FRONK v. FRONK et al.
• Court: Missouri Court of Appeals

141 S.W. 692

159 Mo. App. 543

FRONK v. FRONK et al.

Kansas City Court of Appeals. Missouri.

December 4, 1911.

1. APPEAL AND ERROR (§ 927)—REVIEW—DEMURRER TO EVIDENCE — ABSTRACT OF EVIDENCE.

While one, to have review of the ruling on his demurrer to the evidence, must abstract all the evidence (and showing that he has omitted part of it will, on the presumption of right action by the trial court, bar review), it is enough that the substance of the evidence is given; and this is done if all the testimony of witnesses is given in the narrative of the witnesses, without setting out the questions and answers in hæc verba; not so, however, if the narrative be that of the attorney.

2. HUSBAND AND WIFE (§ 325)—ALIENATION OF AFFECTION—LIABILITY OF PARENTS.

To make the parents of plaintiff's husband liable for alienation of his affection, it is not enough, as in the case of a stranger, to show interference by them, as malice on their part

will not be inferred; but it must be shown that their conduct was not such as should be characterized as a natural result of parental solicitude, but amounted to a clear case of want of reasonable justification.

3. HUSBAND AND WIFE (§ 332)—ALIENATION OF AFFECTIONS — PLEADING AND PROOF — JOINT LIABILITY.

Action for alienation of the affections of plaintiff's husband being against defendants jointly, based on the allegation of conspiracy and co-operation between defendants to separate plaintiff from her husband, proof of such joint action is necessary.

4. HUSBAND AND WIFE (§ 333)—ALIENATION OF AFFECTIONS—EVIDENCE.

Evidence, in an action for alienation of the affections of plaintiff's husband, held to show that his vicious conduct was the sole cause of the estrangement; and that defendants, his parents, did not act out of malice to plaintiff, but out of love for, and in hope of saving, their son, and did not transgress the limits of parental propriety.

Appeal from Circuit Court, Harrison County; G. W. Wanamaker, Judge.

Action by Birdie Fronk against J. L. Fronk and Lottie Fronk. Judgment for plaintiff, and defendants appeal. Reversed.

Wilson & Wilson, L. M. Phipps, and Kelso & Kelso, for appellants. Du Bois & Miller and John Ewing, for respondent.

JOHNSON, J.

This action was begun in the circuit court of Worth county, September 1, 1909, to recover actual and punitive damages for the alienation of the affections of plaintiff's husband. The defendants are the father and stepmother of the husband, Harry Fronk, and the petition alleges that they "wrongfully, wickedly, and maliciously acted and co-operated together with the wrongful, wicked, and malicious intent to cause plaintiff's said husband to leave and abandon her, * * * and on or about the _____ day of January, 1909, the defendants, pursuant to their said wicked, wrongful, and malicious intent, did wrongfully, wickedly, and maliciously entice, influence, and induce plaintiff's said husband to leave and abandon her," etc.

The answer, in addition to a general denial, pleads that plaintiff voluntarily separated from her husband, and recites certain facts tending to show that the alienation of husband and wife had become complete before the date stated in the petition, and was created by other causes than those charged in the petition. Further, the answer alleges "that repeatedly during the married life of the said plaintiff and her said husband, Harry E. Fronk, these defendants have counseled together and done everything in their power to induce said plaintiff and her said husband to live peaceably and happily as husband and wife."

The first trial of the cause resulted in a verdict for plaintiff, but a new trial was granted defendants, and afterward, on motion of plaintiff for a change of venue, the cause was sent to Harrison county, where it was tried again, resulting in a verdict and judgment for plaintiff for $2,000 actual and $500 punitive damages. After unsuccessfully moving for a new trial and in arrest of judgment, defendants appealed. Their principal contention is that the court should have granted their request for a peremptory instruction.

At the threshold of our inquiry into this branch of the case, we are confronted with a vigorous attack, made by respondent, on the sufficiency of the abstract of the record filed by appellants to present as an issue in this court the question of the soundness of the ruling of the trial court in refusing to direct a verdict for the appellants. The insistence of respondent is that the rules of appellate procedure in this state require an appellant, if he would have his demurrer to the evidence considered on appeal, to set out in his abstract all of the evidence in hæc verba, and that appellants have not presented all of the evidence in their abstract; nor have they given the testimony of the witness in the form of the questions and answers asked and answered at the trial, and preserved in the bill of exceptions. In support of this contention, and for that purpose only, respondent has filed an additional abstract, containing extracts from the bill of exceptions. Appellants insist they have complied with the rule by reciting all of the evidence. To aid in the settlement of this dispute, the parties have brought the bill of exceptions, and we have taken the pains thoroughly to go over these several documents. The bill of exceptions contains approximately 300 typewritten pages of evidence, consisting chiefly of the testimony of witnesses. The abstract of appellants includes about 75 printed pages of evidence in a condensed form. The abridgment does not consist of the omission of any of the evidence. The testimony of every witness is included, but such testimony is given, not in the form of questions and answers, but in what purports to be the witness's own narrative. The abstract states on its face that it contains all the evidence, and we think it does in a narrative form.

The first question, therefore, is this: Were the appellants required by the rules of procedure to abstract the testimony of witnesses in the form of questions and answers, and without any abridgment of the bill of exceptions, in its recitals of such evidence? In Doherty v. Noble, 138 Mo. 25, 39 S. W. 458, the Supreme Court say: "Appellate courts review the evidence in equity cases, and, unless all of it, or its substance (italics ours), is preserved in the record, we must act on the presumption that the trial court decided correctly. The omitted evidence may be controlling, and we must assume that it was."

In Reed v. Peck, 163 Mo., loc. cit. 336, 63 S. W. 735, the same court say: "Appellants virtually concede that all of the evidence is not embraced in the abstract, the evidence of several of the witnesses being left out entirely; while as to others only a brief synopsis or summary of what is called by defendants the substance of such testimony. As was said in the case of Epstein v. Clothing Co., 67 Mo. App. 221: `It will not do to allow appellant's counsel to cull over the record and present such evidence as they may think pertinent or material; the entire evidence must be set out, so that this court may for itself determine its materiality and probative force.' So in Davis v. Vories, 141 Mo. 234 [42 S. W. 707], it was held that the Supreme Court will not pass upon the insufficiency of the evidence where it is not fully set out in the record. The same rule is announced in Ogelbay v. Kansas City College of Dental Surgery, 71 Mo. App. 339."

And in Harrison v. Pounds, 190 Mo. 349, 88 S. W. 713, where certain important evidence was omitted from the abstract, it is held: "It is the settled rule of law in this court that, where we are asked to pass upon a demurrer to the evidence, or as to whether there is any evidence to establish a fact, the appealing party must bring all the evidence before this court; otherwise we will not disturb the finding of the trial court."

Passing to the decisions of this court on the same subject, the first case to which our attention has been directed by respondent is Goodson v. Railway, 23 Mo. App. 76, where this court, speaking through Hall, J., say: "The appellant should have set out in his abstract, in hæc verba, so much of the transcript as contained all the evidence on that question. Without such an abstract, we are unable to say what was the evidence, or what was its effect, unless we examine the transcript. The appellant in his abstract has not pretended to set out the evidence as contained in the transcript in the words used in the transcript. The appellant has simply set out in the abstract his version of the evidence; that is to say, what the effect or meaning of the evidence was, in his opinion. Without the words used in the transcript, we cannot treat the abstract as the record itself." To the same effect is the decision in Meriwether v. Howe, 48 Mo. App. 148.

In Nash v. Brick Co., 109 Mo. App., loc. cit. 604, 83 S. W. 91, in an opinion written by Smith, P. J., we say: "When a case is brought here by appeal or writ of error, and the defendant assigns for error the action of the trial court in denying a demurrer interposed by him to the evidence adduced by the plaintiff in that court, we will not consider such assignment, unless the whole evidence is set out in hæc verba in the abstract. This rule has been long established and steadily observed. Goodson v. Railroad, 23 Mo. App. 76; Meriwether v. Howe, 48 Mo. App., loc. cit. 152; Doherty v. Noble, 138 Mo. 25 [39 S. W. 458]. The abstract in the present case presents a number of excerpts of the evidence taken from the bill of exceptions and mingled with statements of the substance of other parts of it, or with defendant's conclusion as to what such other parts of it conduce to prove. The abstract, therefore, does not present the entire evidence, and accordingly we cannot review the actions of the trial court on the demurrer."

In Keithley v. Independence, 120 Mo. App. 255, 96 S. W. 733, we hold that, when the abstract...