Gibson v. Frowein

• Citation: 400 S.W.2d 418
• Decision Date: 14 March 1966
• Docket Number: No. 50660,50660
• Parties: Ruth GIBSON, Appellant, v. Eugenia FROWEIN, Respondent.
• Court: United States State Supreme Court of Missouri

Page 418

400 S.W.2d 418

Ruth GIBSON, Appellant, v. Eugenia FROWEIN, Respondent.

No. 50660.

Supreme Court of Missouri, En Banc.

March 14, 1966.

Wm. Harrison Norton, Williams, Norton & Pollard, North Kansas City, Joseph R. Hogsett, Houts, James, Hogsett & McCanse, Kansas City, for appellant.

Charles F. Lamkin, Jr., Alfred Kuraner, Kansas City, Kuraner, Oberlander, Lamkin, Dingman & O'Laughlin, Kansas City, of counsel, for respondent.

STOCKARD, Commissioner.

Plaintiff has appealed from a judgment entered pursuant to a unanimous jury verdict in her suit for $200,000 actual and $200,000 punitive damages for the alienation of the affections of her husband. Plaintiff's points on this appeal are limited to the challenge of four instructions given at the request of respondent. There is no contention by defendant that a submissible case was not made.

We must first rule defendant's motion to dismiss this appeal because of the alleged failure of plaintiff to comply with Civil Rule 83.05(a)(2), V.A.M.R., in that her brief does not contain '(a) fair and concise statement of the facts without argument.' As stated in paragraph (c) of the rule, this requirement anticipates a fair and concise statement of the facts 'relevant to the questions presented for determination.' In this case the questions for determination are limited to the correctness of four instructions, and a statement of the facts relevant to those questions do not call for a lengthy and detailed analysis of the testimony of each and every witness as defendant has presented in more than fifty printed pages of her brief. On the other hand, plaintiff has not made a proper statement of the facts, but she has detailed the testimony of some, but not all, of the witnesses. Neither brief is within the spirit or intendment of the rule, but we can readily determine the issues presented. The motion to dismiss is overruled.

At time of trial plaintiff was and has been for 43 years married to her husband whose affections she alleged had been alienated by defendant, a family friend and a former business associate of her husband who, among other activities, raised saddle horses and displayed them at fairs. Plaintiff was 63 years of age and her husband a few years older. Defendant was 50 years of age. Plaintiff testified that she knew of the improper relations between defendant and her husband since 1945, but that prior to filing this suit she had never said anything to either about their conduct. She and her husband lived together until after this suit was filed, and until a short time before the trial. Both plaintiff and defendant testified, but plaintiff's husband did not. We see no occasion to detail the evidence of plaintiff or to set forth the alleged wrongful conduct of defendant. Neither do we need to set out the denials by defendant and other evidence from which a jury could find that the loss of affection for plaintiff by her husband did not result from the conduct of defendant. It is sufficient to say that plaintiff's evidence, if believed notwithstanding defendant's denials, authorized a finding by the jury of acts on her part inherently wrongful and seductive, and which could be found to have the natural and probable result of alienating the affections of plaintiff's husband.

Plaintiff's verdict directing instruction first abstractly advised the jury that a married woman is entitled to the affections, society, assistance, companionship and conjugal fellowship of her husband free from willful interference of others. The instruction interference of others. The find and believe from the evidence in the case that defendant was guilty of intentional and wrongful conduct the natural result of which was an interference with plaintiff's marital relationship with her husband and an alienation of his affections, society, assistance, companionship and conjugal fellowship, if so, and if you find that was the effect actually produced by defendant's conduct, then your verdict should be for plaintiff.' There then followed instructions on the measure of damages, including punitive damages, and burden of proof, and an instruction defining 'willfully' as 'intentionally,' and 'maliciously' as 'wrongful and intentional and without just cause or excuse.'

At the request of the defendant, the court gave instructions 6, 7, 8 and 9, each of which is challenged on this appeal by plaintiff as prejudicially erroneous. Instruction 6 told the jury the 'before you can find the issues for the plaintiff and against the defendant for alienation of the affections of the plaintiff's husband, you must find from the evidence that the defendant herself intentionally induced the husband of the plaintiff to withdraw his affections from the plaintiff, if you find he did so. It is not enough for plaintiff to show merely that the defendant was friendly with the husband of the plaintiff, nor is it sufficient that you should find merely that defendant's conduct in her associations with plaintiff's husband amounted to impropriety, or was even of a scandalous nature, if you so find, but before you can find for the plaintiff for alienation of affections, it must be shown by the evidence that defendant's conduct in her associations with the husband of plaintiff was improper and wrongful, further, that the defendant intended by such conduct to cause plaintiff's husband to withdraw his affections from her, and further, that such conduct on the part of the defendant, if you find there was such conduct, did cause the husband of plaintiff to withdraw his affections from plaintiff, if you so find. If plaintiff has failed to prove any one of these facts by the greater weight of the evidence, it will be your duty to find the issues for the defendant.' (Italics added).

Plaintiff asserts that Instruction 6 is erroneous because it requires as a condition precedent to a verdict for her that the jury find as a fact that the defendant actually intended to cause plaintiff's husband to withdraw his affections from her. Defendant asserts that the instruction has been approved in Sandler v. Schmidt, Mo., 263 S.W.2d 35, and that it is 'a proper converse of the plaintiff's principal instruction, and properly declared the law of Missouri to the jury.'

We note first that plaintiff submitted the intention of defendant in this manner: 'that defendant was guilty of intentional and wrongful conduct the natural result of which was an interference with plaintiff's marital relationship with her husband and an alienation of his affections, * * *.' Plaintiff submitted intentional acts on the part of defendant, but defendant in Instruction 6 submitted that the result must actually have been intended. Instruction 6 was not a converse of plaintiff's submission.

Alienation of affections is an intentional tort, and the elements of the cause of action are defendant's wrongful conduct, plaintiff's loss of the affections or consortium of his spouse, and the causal connection between such conduct of defendant and the loss by plaintiff. Comte v. Blessing, Mo., 381 S.W.2d 780; Rank v. Kuhn, 236 Iowa 854, 20 N.W.2d 72, 74; Paulson v. Scott, 260 Wis. 141, 50 N.W.2d 376, 31 A.L.R.2d 706; 27 Am.Jur. Husband and Wife § 523. While the acts constituting the wrongful conduct on the part of the defendant must have been intentional, proof that the defendant had an actual intent to alienate the affections of plaintiff's spouse is not necessary if the acts and conduct of the defendant are inherently wrong and seductive and tend to and do have that effect. Rank v. Kuhm, supra; Kiger v. Meehan, 253 Iowa 746, 113 N.W.2d 743; Paulson v. Scott, supra; Leardi v. Gonser, 23 Conn.Sup. 65, 176 A.2d 594; Tice v. Mandel, N.D., 76 N.W.2d 124; Martin v. Ball, 30 Ga.App. 729, 119 S.E. 222; Wendt v. Wendt, 106 Neb. 554, 184 N.W. 66; Moore v. Grimes, 169 Okl. 4, 35 P.2d 944; Eklund v. Hackett, 106 Wash. 287, 179 P. 803; Boden v. Rogers, Ky., 249 S.W.2d 707; Harlow v. Harlow, 152 Va. 910, 143 S.E. 720; Lankford v. Tombari, 35 Wash.2d 412, 213 P.2d 627, 19 A.L.R.2d 462; 27 Am.Jur. Husband and Wife § 527; 42 C.J.S. Husband and Wife § 662. Intent is rarely susceptible of direct proof but usually must be inferred from acts and conduct, and as in other situations, in an action for alienation of affections, a person is presumed to intend the natural and probable consequences of his voluntary acts. Pearsall v. Colgan, 76 S.D. 241, 76 N.W.2d 620. A better, and...