Grubb v. Curry, 22929.

• Citation: 72 S.W.2d 863
• Decision Date: 15 June 1934
• Docket Number: No. 22929.,22929.
• Parties: GRUBB v. CURRY et al.
• Court: Court of Appeal of Missouri (US)

72 S.W.2d 863

GRUBB v. CURRY et al.

No. 22929.

St. Louis Court of Appeals. Missouri.

June 15, 1934.

Appeal from Circuit Court, Scotland County; Walter A. Higbee, Judge.

"Not to be published in State Reports."

Action by Hubert Grubb against Mary I. Curry and John W. Curry. From a judgment for Mary I. Curry and for plaintiff as against John W. Curry, John W. Curry appeals.

Affirmed.

Jayne & Jayne, of Memphis, Mo., for appellant.

Smoot & Smoot, of Memphis, Mo., for respondent.

BECKER, Judge.

This is an action by Hubert Grubb, for damages for the alienation of the affections of his wife, against defendants John W. Curry and Mary I. Curry, husband and wife, who are plaintiff's father and mother in law. A trial was had to a jury resulting in a verdict for the defendant Mary I. Curry and against the defendant John W. Curry, for the sum of $400. The defendant John W. Curry in due course appeals.

As to the pleadings, it is sufficient to state that the petition charges that the defendants, on or about the 20th day of August, 1932, did wrongfully, wickedly, and maliciously entice, influence, and induce plaintiff's wife to leave and abandon him, and that, by reason thereof, the wife of plaintiff, being so influenced by such wrongful enticement, influence, and inducement of the defendants, and under their domination, did then leave and abandon plaintiff, and ever since said day has remained away from plaintiff.

The answer of defendants was a general denial.

Respondent insists that the defendant's appeal should be dismissed on the ground that "appellant's statement, abstract and assignment of errors" does not contain, separate and apart from the argument or discussion of authorities, a statement in numerical order of the points relied on, together with citation of authorities appropriate under each point, as required by rule 18 of this court.

"Appellant's statement, abstract and assignments of errors" is not in conventional form. What is intended as appellant's brief does set up three assignments of errors, but does not set out any points which appellant relies on, nor any citation of authorities. However, one of the assignments of errors set up by appellant is that the trial court erred in overruling defendants' demurrer offered at the close of the case, and we have determined that we will pass upon that question here on this appeal.

To take up the question of the sufficiency of the evidence in the case, we will dispose of the argument in support of the demurrer that plaintiff's petition in effect charges a conspiracy as between the defendants, husband and wife, in the matter of the alienation of the affections of plaintiff's wife, whereas the plaintiff, upon all of the evidence in the case, must be viewed as having failed to sustain such charge. There is no merit to this point, in that the liability of civil conspirators is joint and several. Schultz v. Ins. Co., 151 Wis. 537, 139 N. W. 386, 43 L. R. A. (N. S.) 520. Joint action may be maintained against conspirators for damages caused by their wrongful act, but all the conspirators need not be joined; an action may be maintained against but one. Kimball v. Harman, 34 Md. 407, 6 Am. Rep. 340; Schultz v. Ins. Co. supra. As the gist of the modern civil action of conspiracy is the damage and not the combination, the authorities sustain the proposition that ordinarily a verdict may be rendered against one of the defendants, even though no conspiracy is proved. Boston v. Simmons, 150 Mass. 463, 23 N. E. 310, 6 L. R. A. 629, 15 Am. St. Rep. 230; Van Horn v. Van Horn, 52 N. J. Law, 284, 20 A. 485, 10 L. R. A. 184.

From a reading of the record, we have determined that there is substantial evidence in the record to warrant the submission of the case to the jury. In reaching this conclusion, we are mindful that on demurrer plaintiff's evidence, whether contradicted or not, must be regarded as true, so long as it is not impossible as opposed to the physics of the case or entirely beyond reason, and defendants' evidence must be taken as false where it is contradicted by that of plaintiff. Furthermore, plaintiff is entitled to the benefit of every reasonable inference favorable to his case, which the evidence tends to support. Wair v. Car & Fdry. Co. (Mo. App.) 285 S. W. 155; Williams v. Ry. Co., 257 Mo. 87, 165 S. W. 788, 52 L. R. A. (N. S.) 433; Stauffer v. Ry. Co., 243 Mo. 305, 147 S. W. 1032; Van Raalte v. Graff, 299 Mo. 513, 253 S. W. 220; Peters v. Lusk, 200 Mo. App. 372, 206 S. W. 250; Dawson v. Ry. Co., 197 Mo. App. 169, 193 S. W. 43; Conley v. Motor Co., 204 Mo. App. 37, 221 S. W. 165.

Viewed in the light of the rule as stated above, there is evidence, if believed, which tends to show that plaintiff and Maude Curry, daughter of the defendants, were married in March, 1913, and that they continued to live together as husband and wife until August 18, 1932; that one child, a daughter, was born of the marriage, who at the last named date was about sixteen years of age. Throughout the years of their married life they lived on a farm near Arbela in Scotland county, and the defendants lived upon a farm four miles away. The families exchanged visits throughout those years, and the husband and wife, up to the time of the separation, seemed to get along in a peaceful contented manner. In the early part of May, 1929, plaintiff's wife was under the care of physicians, who reached the conclusion that she was subject to "depressed hallucinations which might lead to insanity," and upon their advice plaintiff's wife was, on May 2, 1929, taken to specialists at Kansas City. She remained there under observation until May 19th, when she was taken from Kansas City to the state institution at Fulton, Mo., where she remained six months, after which she returned to her home and took up her normal place in the family life as the wife of plaintiff and aided in the management of the home. However, in the early months of 1932, plaintiff's wife showed signs of the return of her former illness, evidenced by hallucinations that some one was endeavoring to do her injury. Plaintiff thereupon wrote a letter to the defendants, telling them of his wife's condition, and suggesting that defendants pay them a visit, which the mother did, remaining some four or five days. On Thursday, August 18, 1932, plaintiff took his wife and daughter to visit defendants. Plaintiff remained at defendants' home two hours and returned to his farm; it being understood that he was to call for his wife and daughter the following day. He telephoned the following day and learned that his wife was not ready to return. On the following day, Saturday, plaintiff drove over to defendants' home, expecting that his wife and daughter would return with him. Upon his arrival, the wife of plaintiff stated that she would be ready to go home just as soon as she ironed a dress, but Mrs. Curry, her mother, reminded her that she and her husband had written Mrs. Grubb's sister Ora, who lived at Quincy, to come over, and that Ora was to arrive that evening and remain over Sunday with them, whereupon plaintiff's wife stated she would like to remain over, to which he agreed. Plaintiff came...