Greuneich v. Greuneich

• Decision Date: 17 June 1912
• Citation: 137 N.W. 415,23 N.D. 368
• Court: North Dakota Supreme Court

137 N.W. 415

23 N.D. 368

BERTHA GREUNEICH v. CHRISTOPH GREUNEICH

Supreme Court of North Dakota

June 17, 1912

Appeal by defendant from a judgment of the District Court for McIntosh County, Allen, J., in plaintiff's favor in an action brought to recover damages for alienation of her husband's affections.

Reversed.

Judgment of the District Court reversed, and a new trial ordered.

W. S Lauder and Wishek & Shubeck, for appellant.

If a wife leave her husband, or a husband his wife, and he or she is induced so to do by the advice or counsel of a parent even though such advice was not wisely given, the parent will not be held liable, unless it is made to appear that in giving such advice or counsel the parent acted in bad faith and not honestly to promote the interest and welfare of the child. Luick v. Arends, 21 N.D. 614, 132 N.W. 353; Trumbull v. Trumbull, 71 Neb. 186, 98 N.W. 683, 8 Ann. Cas. 812; and cases cited; Smith v. Lyke, 13 Hun, 204; Multer v. Knibbs, 193 Mass. 556, 9 L.R.A.(N.S.) 322, 79 N.E. 762, 9 Ann. Cas. 958; Leavell v. Leavell, 122 Mo.App. 654, 99 S.W. 450; Miller v. Miller, 122 Mo.App. 693, 99 S.W. 757; Smith v. Gillapp, 123 Ill.App. 121; Huling v. Huling, 32 Ill.App. 519; Oakman v. Belden, 94 Me. 280, 80 Am. St. Rep. 396, 47 A. 553; Brown v. Brown, 124 N.C. 19, 70 Am. St. Rep. 574, 32 S.E. 320; Campbell v. Carter, 6 Abb. Pr. (N. S.) 151; Tucker v. Tucker, 74 Miss. 93, 32 L.R.A. 623, 19 So. 955; Rath v. Rath, 2 Neb. (Unof.) 600, 89 N.W. 612; Rabe v. Hanna, 5 Ohio 530; Payne v. Williams, 4 Baxt. 583.

G. M. Gannon, Alfred Zuger, and T. A. Curtis, for respondent.

Instructions of the court must be applicable to the issues and in harmony with the facts in the case. It is error for a court to charge the jury on an issue not raised by the pleadings or evidence. Bailey v. Bailey, 94 Iowa 598, 63 N.W. 343; State v. Peltier, 2 N.D. 188, 129 N.W. 452; 21 Cyc. 1623; Rath v. Rath, 2 Neb. (Unof.) 600, 89 N.W. 612; Johnson v. Allen, 100 N.C. 131, 5 S.C. 666; Williams v. Williams, 20 Colo. 51, 37 P. 619; Schouler, Dom. Rel. § 41; Hutcheson v. Peck, 5 Johns. 210; Luick v. Arends, 21 N.D. 614, 132 N.W. 364.

OPINION

BRUCE, J.

This is an action for damages brought by a wife for the alienation of her husband's affections. The case was tried to a jury, and the trial resulted in a verdict for plaintiff for $ 4,000, and judgment was entered thereon. The defendant moved for a new trial, and the motion was overruled. The defendant now prosecutes this appeal to secure a reversal of the said judgment.

In his instructions in regard to the measure of damages, the trial court charged the jury as follows: (1) "But if you find by a preponderance of the evidence that Wilhelm Greuneich treated his wife cruelly, and mistreated her as alleged in the complaint, and that Wilhelm was induced to so treat his wife because of what the defendant said and did, then the defendant, Christoph Greuneich, would be responsible and your verdict in such case should be in favor of the plaintiff." (2) "On the other hand, gentlemen, if you find by a preponderance of the evidence that Wilhelm treated his wife in a cruel manner, and separated himself from her and cast her off, and you further find by a preponderance of the evidence that the defendant was the controlling cause, and that he is responsible on account of what he did and said to his son for the treatment of Wilhelm towards his wife, then he would be responsible for the result and should therefore respond in damages." (3) "It is proper, gentlemen of the jury, in considering this matter to take into account all the facts and circumstances, and the statements and acts of the respective parties, as far as the same have been testified to here which took place before the date of the alleged separation, as tend to show whether the separation of the plaintiff from her husband was brought about as a consequence of, and was the outcome of, the wrongful acts and statements of defendant herein, or that said separation was due to some other cause for which the defendant was not responsible." (4) "And I instruct you further that if the jury find that the defendant acted maliciously in causing the separation of the plaintiff from her husband, they may allow plaintiff, in addition to actual damages, such further additional sum by way of punitive damages, as they shall in their sound judgment deem just, not in all, however, exceeding the sum claimed in the complaint. Punitive damages are damages awarded against defendant by way of punishment for his malicious acts; and in assessing such punitive damages you have a right to take into consideration the wealth or poverty of the defendant as disclosed in the evidence, and you may make your award of punitive damages large or small according to the defendant's wealth, always keeping in mind that such damages must be just and reasonable; that is, upon the theory that punitive damages being by way of punishment, a small amount which might be a severe punishment to a poor man would be no punishment at all to a rich man. And if you find this a proper case under the instructions of the court for the infliction of punitive damages, you should make your award of such damages after a due consideration of all the facts proved, and taking into consideration the wealth or poverty of defendant as shown by the evidence, and you must be satisfied that there was actual malice on behalf of defendant, and that he acted maliciously and wilfully, before you award damages of this kind." (5) "I instruct you, further, gentlemen, that if you find by a preponderance of the evidence that the plaintiff was abandoned by her husband, and further find that the misconduct of the defendant was the controlling cause which induced the plaintiff's husband to abandon her, and without which it would not have occurred, this action could be maintained, and your verdict should be for the plaintiff although other causes contributed to the separation."

BRUCE, J. (after stating the facts as above). It will be noticed that in none of the instructions relating to compensatory damages did the court call the attention of the jury to the fact that before damages could be awarded they must find that the defendant acted maliciously, and with the intention to alienate the affections of the husband. It is true that, in his instruction in relation to punitive damages, the court stated that a malicious motive had to be found. This instruction, however, merely served to emphasize and strengthen the belief...