Glatstein v. Grund

• Decision Date: 08 January 1952
• Docket Number: No. 47907,47907
• Citation: 51 N.W.2d 162,36 A.L.R.2d 531,243 Iowa 541
• Parties: , 36 A.L.R.2d 531 GLATSTEIN v. GRUND.
• Court: Iowa Supreme Court

Page 162

51 N.W.2d 162

243 Iowa 541, 36 A.L.R.2d 531

GLATSTEIN v. GRUND.

No. 47907.

Supreme Court of Iowa.

Jan. 8, 1952.

Rehearing Denied March 7, 1952.

Volney Diltz and J. R. McManus, Des Moines, for appellant.

Emmert, James, Needham & Lindgren, Des Moines, for appellee.

GARFIELD, Justice.

Plaintiff Shirlee A. Glatstein, then about 26, married Dr. Carl C. Grund (a dentist) then about 36, on June 22, 1947, after an engagement of nearly six months and a courtship of several years. March 7, 1949, she was granted a divorce. This law action against Carl's mother for alienating his affections followed. Defendant appeals from verdict and judgment for plaintiff. Most of the errors asserted deal with questions of evidence.

I. Defendant asserts, although not vigorously, the evidence is insufficient for submission to the jury. Of course it is our duty to view the evidence in the light most favorable to plaintiff. Rank v. Kuhn, 236 Iowa 854, 859, 20 N.W.2d 72, 75. See also Stilwell v. Stilwell, 186 Iowa 177, 189, 172 N.W. 177. There is little doubt of its sufficiency when viewed in such light.

In an action of this kind, in the absence of evidence to the contrary, it is presumed husband and wife have affection for each other. Rank v. Kuhn, supra, at page 862 of 236 Iowa, pages 76, 77 of 20 N.W.2d and citations; Sexton v. Sexton, 129 Iowa 487, 496, 105 N.W. 314, 2 L.R.A.,N.S., 708; 27 Am.Jur., Husband and Wife, section 550. Here, there is not only this presumption but much testimony plaintiff and Carl, when married, had strong affection for each other. It is undisputed that at the time of the divorce plaintiff had lost Carl's affections. There is ample evidence such loss was caused by defendant's wrongful conduct or, as we have expressed the rule, that defendant's 'misconduct was a substantial factor in causing such loss.' Rank v. Kuhn, supra, at pages 857, 860 of 236 Iowa, pages 74 to 76 of 20 N.W.2d, and citations.

It is true more proof is required to support an action of this kind against a parent than against a stranger. This is because of the parent's right to advise a married child. While a parent may advise a married son in all matters relating to his welfare, including his domestic affairs, such advice must be in good faith and not from malice or other improper motive. Wallrich v. Wallrich, 232 Iowa 762, 766, 767, 6 N.W.2d 107, 109, and citations; 42 C.J.S., Husband and Wife, § 681.

There is substantial evidence of the following. When plaintiff and her new husband were about to leave on their honeymoon defendant clung to her son and between sobs said, 'Remember, sweetheart, no one can ever come between us. Remember you belong to me always.' Upon their return from the honeymoon to live in defendant's home defendant accused plaintiff of trying to steal Carl away from her, ridiculed the wedding, told them it was disgusting and said she didn't like plaintiff's clothes. Defendant insisted the door remain open between the room in which plaintiff and Carl slept and defendant's room and in other ways denied them privacy. Defendant called plaintiff a nothing, a witch, an outcast, and called plaintiff's family vile names. Because plaintiff was one of eight children defendant likened her to one of a litter of pigs, said it was terrible to have so many children and 'there should be a law to kill babies as soon as they were born.' Defendant said plaintiff was not to have children nor did she want any child of plaintiff to bear their name. When plaintiff told her husband and defendant she thought she was pregnant, defendant was very upset and insisted something be done about it. Plaintiff was then given pills to discourage pregnancy.

Defendant wrongfully accused plaintiff of taking mail addressed to defendant and instructed those who wrote her to write 'personal' on the envelopes. Defendant criticised plaintiff's cooking in Carl's presence, refused to eat it and said it was a waste of food. She also frequently found fault with plaintiff in many other respects. More than once defendant told Carl in plaintiff's presence he married a nothing, he should be ashamed to be seen with plaintiff, he had best get an immediate divorce. Defendant repeatedly ordered plaintiff to leave the home.

There is much evidence defendant and Carl frequently slept together after the marriage. While they deny this, their denials are somewhat qualified. Defendant herself testifies on direct examination that Carl once told plaintiff he was going to sleep with his mother that night but says she (defendant) told him he had better go to his own room (although the room was occupied that night by plaintiff's mother. There was a third bedroom in the house too). There is testimony that the night before the marriage Carl, defendant and her other son canceled a reservation plaintiff made for them at the hotel where the marriage occurred of one of two rooms and defendant slept on a cot in the room with her two sons. Defendant said Carl was her husband and belonged to her. Defendant's niece testifies defendant said, 'There is nothing Shirlee (plaintiff) can do for him I cannot do.' Defendant's sister-in-law says defendant asked on this occasion, 'What has she got that I or any other girl hasn't got?' We find no denial of this testimony. In defendant's presence Carl threatened to kill plaintiff if she divulged what went on in the house.

Strenuous efforts were made in different ways by plaintiff, her father, her attorney, defendant's niece and sister-in-law to effect a reconciliation between plaintiff and Carl before and after plaintiff was driven from defendant's home and repeatedly urged to get a divorce, 'the sooner the better.' This testimony, much of it undenied, is inconsistent with the claim plaintiff was 'a gold digger.' In the end these efforts were unsuccessful and plaintiff--she says unwillingly--procured a divorce.

It is of course not feasible to summarize all the evidence in a printed record of 800 pages from a trial lasting three weeks. Especially since defendant does not press this claim of error we have mentioned enough to demonstrate the evidence presents a question for the jury. See Wallrich v. Wallrich, supra, 232 Iowa 762, 6 N.W.2d 107; Stilwell v. Stilwell, supra, 186 Iowa 177, 172 N.W. 177; Miller v. Miller, 154 Iowa 344, 134 N.W. 1058; Heisler v. Heisler, 151 Iowa 503, 131 N.W. 676.

While defendant denies much of the above testimony of course the conflict was for the jury to decide. Wallrich v. Wallrich, supra, 232 Iowa 762, 766, 6 N.W.2d 107, 109. There is evidence defendant's reputation for truth and veracity was not good. This was proper for impeaching purposes. Halligan v. Lone Tree Farmers Exchange, 230 Iowa 1277, 1284, 300 N.W. 551, 554, and citations.

II. Defendant asserts error in the admission of hearsay, mainly verbal statements by Carl not in defendant's presence. We find nothing under this assigned error of which defendant may complain.

Of course declarations of one not a party to the action are ordinarily not admissible in evidence. But there are exceptions to the rule. In an action like this, though the husband is not a party, his conduct, as well as defendant's, is directly involved. It is well settled that declarations of the alienated spouse during the period of alienation may be shown as bearing on the state of his mind and affections toward plaintiff and the effect of defendant's conduct upon him. Such evidence is not competent to show defendant in fact exerted a wrongful influence or said or did the things charged. Hardwick v. Hardwick, 130 Iowa 230, 106 N.W. 639; Miller v. Miller, supra, 154 Iowa 344, 134 N.W. 1058; Warren v. Graham, 174 Iowa 162, 156 N.W. 323; Moir v. Moir, 181 Iowa 1005, 1011, 1012, 165 N.W. 221; Annotation 82 A.L.R. 825, 829; 27 Am.Jur., Husband and Wife, sections 559, 561, 562; 42 C.J.S., Husband and Wife, § 688b(2).

In admitting evidence of the husband's declarations the trial court carefully limited its consideration to the above purposes for which it was receivable. Such admonition was repeated in the written instructions to the jury.

As to much of the evidence complained of under this assigned error defendant did not urge upon the trial the objection now argued. As to some of it defendant's counsel expressly stated he made no objection except it was repetition. Some of the evidence now complained of was injected into the case by defendant's counsel or was made proper by his cross-examination. He offered and there was received similar evidence of conversations between defendant and her son, not in plaintiff's presence, with counsel's assurance it was proper thus to show their state of mind. When plaintiff's counsel objected as hearsay to a conversation between defendant and Carl, defendant's counsel said, 'Oh, hearsay, you are constantly talking about that. We are trying this entire case under the exception to the hearsay rule.' (Defendant's attorney upon the trial is not the one who presented this appeal to us.)

One complaint under this assigned error deals with an occurrence when plaintiff says she believed she was pregnant. We consider this in Division III hereof. Another complaint deals with a conversation between plaintiff, her father and Carl in the summer of 1948 in a Des Moines hotel when plaintiff and her father say a reconciliation between plaintiff and Carl was effected. On direct examination plaintiff testified Carl proclaimed his love for her at this conference and agreed to be a good husband. This was clearly proper as showing the state of Carl's affections. See citations last above; also Crist v. Crist, Ohio App., 62 N.E.2d 252, 253.

On plaintiff's cross-examination defendant's counsel injected into the case testimony that in the hotel conference there was talk between her father and Carl about her accusing Carl of sleeping with his mother. This charge formed the basis for defendant's cross-petition against plaintiff and her father in which $50,000 was...