Fuller v. Robinson

• Decision Date: 19 July 1910
• Citation: 130 S.W. 343,230 Mo. 22
• Parties: FULLER v. ROBINSON.
• Court: Missouri Supreme Court

130 S.W. 343

230 Mo. 22

FULLER v. ROBINSON.

Supreme Court of Missouri, Division No. 2.

July 19, 1910.

1. HUSBAND AND WIFE (§ 333)—ALIENATION OF WIFE'S AFFECTIONS—EVIDENCE—ADMISSIBILITY.

In an action by a husband for the alienation of his wife's affections, a conversation between plaintiff and his wife, in the presence of her mother, had after defendant had shown marked attention to the wife, which contained no reference to any act of defendant, but which showed an admission by the wife that defendant had an influence over her, could be proved to show the state of the wife's affections.

2. HUSBAND AND WIFE (§ 333)—ALIENATION OF WIFE'S AFFECTIONS—EVIDENCE—ADMISSIBILITY.

Where, in an action by a husband for the alienation of his wife's affections, the evidence showed that defendant had paid marked attention to the wife, who admitted to plaintiff that defendant had an influence over her, and that the wife, pursuant to an agreement with her husband, went away for the purpose of avoiding defendant, and that defendant corresponded with her while she was away, and visited her, and that during a part of the time the wife was away she regularly corresponded with her husband until after defendant had visited her, and that the wife then refused to return to her husband, evidence of a conversation between plaintiff and his wife immediately before her going away, showing the state of the affections of the wife, was admissible as against the objection that the alienation had previously occurred; there being nothing to show collusion between husband and wife.

3. HUSBAND AND WIFE (§ 333)—ALIENATION OF WIFE'S AFFECTIONS—EVIDENCE—ADMISSIBILITY.

Evidence that plaintiff at the time his wife went away purchased a round-trip ticket for her at her request was admissible to show that permanent separation was not contemplated by either plaintiff or his wife at that time.

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

Where the wife was under defendant's influence at the time of the trial, the court properly refused to permit her to give her version of her intention at the time of her going away so as to rebut the testimony of plaintiff as to his purchasing a round-trip ticket for her at her request.

5. APPEAL AND ERROR (§ 231)—RULINGS ON EVIDENCE—OBJECTIONS—SUFFICIENCY.

An objection to evidence that it is incompetent and irrelevant amounts to no objection, and the error, if any, in admitting the evidence over such objection is not reviewable.

6. APPEAL AND ERROR (§ 1170) — HARMLESS ERROR — ERRONEOUS ADMISSION OF EVIDENCE.

Where, in an action by a husband for the alienation of his wife's affections, there was abundant evidence to show that defendant by his misconduct alienated plaintiff's wife and caused her to forsake plaintiff, the error, if any, in admitting evidence of the actions of defendant's wife prior to the abandonment of plaintiff by his wife on her discovery of defendant and plaintiff's wife together was not prejudicial, and must be disregarded as required by Rev. St. 1899, § 865 (Ann. St. 1906, p. 812).

7. HUSBAND AND WIFE (§ 333)—ALIENATION OF WIFE'S AFFECTIONS—EVIDENCE.

In an action by a husband for the alienation of his wife's affections, evidence that up to

a certain time the wives of plaintiff and defendant were on intimate terms, and that after defendant had paid plaintiff's wife marked attention for a time, defendant's wife ceased to visit plaintiff, was admissible to show the relations between the families interested, and the intimacy between different members thereof.

8. HUSBAND AND WIFE (§ 334)—ALIENATION OF WIFE'S AFFECTIONS—DAMAGES.

A young business man, honest, capable, and industrious, had lived happily with his young and attractive wife for 10 years, when defendant alienated her affections. Defendant was a man of large means. Held, that a verdict for $15,000, reduced by the trial court to $10,000, would not be set aside as excessive.

9. APPEAL AND ERROR (§ 1004)—REVIEW— QUESTIONS OF FACT—DAMAGES.

The jury, in an action by a husband for the alienation of his wife's affections, must estimate the amount of wrong inflicted on plaintiff's character, and condition and future life, and the verdict will not be disturbed on appeal, unless it is calculated to shock the understanding and show passion and prejudice.

10. HUSBAND AND WIFE (§ 335)—ALIENATION OF WIFE'S AFFECTIONS—ACTIONS—INSTRUCTIONS.

An instruction in an action by a husband for the alienation of his wife's affections that if plaintiff connived at the attentions of defendant towards his wife, the verdict should be for defendant, though his conduct resulted in alienating the affections of the wife, and that if she had no affection for plaintiff, and it was alienated by his conduct towards her or by any other cause other than the attentions of defendant with a willful purpose of alienating her affections, the verdict should be for defendant, was sufficiently favorable to defendant to support his claim that he must have intentionally brought about the alienation.

11. TRIAL (§ 260)—INSTRUCTIONS—REFUSAL OF INSTRUCTIONS COVERED BY THOSE GIVEN.

It is not error to refuse an instruction fully covered by instructions given.

12. TRIAL (§§ 129, 133) — ARGUMENT OF COUNSEL—RETALIATORY STATEMENTS.

Where, in an action by a husband for the alienation of his wife's affections, counsel for defendant in his argument denounced plaintiff as a "scoundrel" and a "perjured liar," and a man who, after encouraging defendant's familiarity with his wife, had come to court to punish him, the argument of plaintiff's counsel that defendant deserted his own wife and should be punished for his conduct, was not ground for reversal, especially where, on objection, the argument of plaintiff's counsel was stricken out and he was admonished.

13. APPEAL AND ERROR (§ 1051)—HARMLESS ERROR — ERRONEOUS ADMISSION OF EVIDENCE.

It is not error to admit evidence establishing a fact shown by evidence previously admitted without objection including the evidence of the party complaining.

14. EVIDENCE (§ 186) — PHOTOGRAPHS — ADMISSIBILITY.

Where a party showed he could not produce an original hotel register because beyond the jurisdiction of the court and not within the control of either of the parties, photographs of the register showing proved signatures thereon were properly received in evidence.

15. EVIDENCE (§ 177)—SECONDARY EVIDENCE —ADMISSIBILITY.

Where an instrument in writing is neither within the jurisdiction of the court nor within the control of either of the parties, secondary evidence of its contents is admissible.

16. APPEAL AND ERROR (§ 1051)—HARMLESS ERROR — ERRONEOUS ADMISSION OF EVIDENCE.

Where the fact that persons registered at a certain hotel was expressly testified to by a party, the error, if any, in admitting photographs of the register showing the names of such persons, was not prejudicial to such party.

Appeal from Circuit Court, Barton County; Jas. B. Johnson, Judge.

Action by A. R. Fuller against Budd M. Robinson. From a judgment for plaintiff, defendant appeals. Affirmed.

A. E. Spencer, for appellant. Thurman & Timmonds, Cole, Burnett & Williams, McAntire & Scott, and P. D. Decker, for respondent.

GANTT, P. J.

This is an action commenced in the circuit court of Jasper county by the plaintiff against the defendant for $25,000 damages for alienating the affections of the plaintiff's wife, causing her to abandon plaintiff and live and remain separate and apart from him. The cause was tried in September, 1906, in the circuit court of Barton county, to which a change of venue had been taken on the application of the defendant. In substance, the petition charged that the defendant had willfully and intentionally alienated the affections of plaintiff's wife, and had wrongfully and wickedly enticed, influenced, induced, and caused plaintiff's wife to abandon plaintiff and live separate and apart from plaintiff, and had thereby permanently deprived plaintiff of the companionship, comfort, enjoyment, aid, support, society, and affection of his wife; that plaintiff's wife being induced, enticed, influenced, and caused, by getting under the influence of the defendant, who was a financially rich and powerful man in the community, has ever since remained away and apart from plaintiff, and by reason thereof the plaintiff has been damaged in the sum of $25,000, for which he prays judgment. The defendant's answer was a general denial.

The testimony on the part of the plaintiff tended to prove that at the time of the trial plaintiff was 32 years old and his wife 31. They had been married 10 years. On going to Joplin with his wife in 1901, plaintiff became employed as an accountant of the Joplin Supply Company, a concern which furnished machinery and general supplies for mining operation. Plaintiff was an industrious, hard working man and faithful to his employers, and while not averse to society and social enjoyment, realized that in his financial circumstances, he could not devote too much of his time in that way. Plaintiff's daily routine of labor was to go to the office of his employer between 7 and 7:30 a. m. and home to lunch from 11:30 to 12 a. m. He took his evening meal about 5:30, and returned to the office at 6:30, and remained until the closing, which was generally about 9 o'clock. He testified that he worked steadily, never had a day off except one week each year for a vacation, and never took the full week at that. He had never been sick to any extent during his employment. His wife was a woman of attractive appearance, slender, with black eyes and black hair, pretty, intelligent, and vivacious, sociable and fond of society. She was very fond of dancing, and desired to go oftener than plaintiff felt he could and do justice to his work. While this caused a difference of opinion between them, it did not result in domestic friction. On this point he testified: "We never had any quarrels. We had differences...