Hamilton v. McNeill

• Decision Date: 17 January 1911
• Citation: 150 Iowa 470,129 N.W. 480
• Parties: HAMILTON v. MCNEILL.
• Court: Iowa Supreme Court

150 Iowa 470

129 N.W. 480

HAMILTON

v.MCNEILL.

Supreme Court of Iowa.

Jan. 17, 1911.

Appeal from District Court, Mahaska County; K. E. Willcockson, Judge.

Action for damages for alienating affection. There was a verdict for plaintiff for $20,000. Defendant appeals. Reversed.

Deemer and Ladd, JJ., dissenting.Geo. W. Seevers, William McNett, and Burrell & Devitt, for appellant.

John O. Malcolm and Thos. A. Cheshire, for appellee.

EVANS, J.

The plaintiff was married in December, 1899. On March 2, 1906, his wife obtained a decree of divorce from him in the district court of Mahaska county. Some time after the decree of divorce, the defendant herein married the plaintiff's former wife. Thereupon this action was brought. The defendant was an acquaintance of both parties for some years prior to the divorce. He was a bachelor about 60 years of age. At the time of his marriage to plaintiff's former wife, he was 63 years of age and she was 26. The plaintiff charged in his petition herein that the defendant alienated the affections of his former wife by means which are epitomized in appellee's argument as follows: That beginning with the month of October, 1902, the defendant, W. A. McNeill, began paying attention and showing courtesies to Hamilton's wife, which McNeill continued until he had alienated the affections of Hamilton's wife. That McNeill induced her to accept the use of his automobile and to ride with him therein; to accept gifts of flowers and money and other things, and by using other and various means, the exact description of which was unknown to the plaintiff, he “premeditatedly, wickedly, wrongfully, and unlawfully cultivated and caused to grow up between himself and the plaintiff's wife a relationship and social intimacy by means of which he gained her confidence, affection, and love.” The petition further stated that McNeill obtained control of the plaintiff's wife's conduct and actions and acquired great influence over her; that he visited her at frequent intervals at her house, while the plaintiff was absent during the business hours of the day and in the evening, when plaintiff was not at home, remaining at plaintiff's house with his wife, during the plaintiff's absence, frequently taking her out in his automobile, through the public streets of Oskaloosa, and in the country, both in the day and night time; that McNeill, by such means and influence, caused plaintiff's wife to withdraw her affection and companionship and love from the plaintiff, whereby the plaintiff's home was destroyed, his family broken up, and plaintiff deprived thereof, and the plaintiff lost the services, assistance, society, companionship, and love of his wife, because of the acts of McNeill.

The petition did not charge any criminal relation between the wife and the defendant. The defendant pleaded in effect a general denial. He also pleaded the facts as to the rendition of a decree of divorce against the plaintiff in favor of his wife, and averred that by the findings of such decree the plaintiff was the guilty party, and that he had thereby forfeited all right to maintain the present action. It is undisputed that in the divorce proceeding the plaintiff's wife charged the defendant husband (plaintiff herein) with cruel and inhuman treatment such as to endanger her life, and that the decree in her favor was based upon the finding of facts so alleged. The contention of the defendant herein was and is that the effect of such decree is to leave the plaintiff without any standing in this action. This contention is based in the first instance upon the following provision of section 3181 of the Code, which is as follows: “When a divorce is decreed, the guilty party forfeits all rights acquired by the marriage.”

As against this contention the plaintiff replies that the section in question is without application to the case for the following reasons: (1) The adjudication in the divorce suit was binding only as between the parties thereto. (2) The rights involved were vested in the plaintiff prior to the divorce, and the plaintiff could not be deprived thereof without due process of law. (3) That the allegations of the petition in the divorce case were false, and the findings of the decree were not true in fact and the decree was obtained by collusion between the parties, and is not binding as an adjudication even between them. (4) That the rights contemplated by the statute in question are such as would arise against the innocent party and not such as might arise against third persons. This in brief presents the contention at this point, and to this question we will direct our first attention.

We think it must be said that plaintiff's right, if any, to maintain this action, is necessarily a right “acquired by the marriage.” The cause of action is one which could arise only out of and by virtue of the marriage relation. On the face of the statute, therefore, the plaintiff, having been adjudged in the divorce decree to be the guilty party, forfeited “all rights acquired by the marriage.” Levins v. Sleator, 2 G. Greene, 604;Lucas v. Sawyer, 17 Iowa, 517;Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654;Nolin v. Pearson, 191 Mass. 283, 77 N. E. 890, 4 L. R. A. (N. S.) 643, 114 Am. St. Rep. 605.

2. As against this it is argued that the defendant was not a party to the divorce decree, and is entitled to no benefits from the adjudication had therein. If this contention be conceded, it falls short of saving to the plaintiff an affirmative right of action. The question at this point is not who shall be the beneficiaries of the statute under consideration, but what consequences shall ensue to the “guilty party” as adjudged in a divorce decree. The statute has to do not only with the peculiar and individual rights of the parties to the suit as between themselves, but it has to do also with the public right and the public interest. If the Legislature deemed it to the public interest, and so enacted, that in case of divorce the guilty party should forfeit “all rights acquired by the marriage,” we know of no rule that would permit such forfeiture to be avoided by a showing that such forfeiture would operate to the benefit in a negative sense of an undeserving person. The following discussion in Dillon v. Allen, 46 Iowa, 299, 26 Am. Rep. 145, is pertinent at this point: “The effects of statutes which make unlawful specified acts, upon persons violating them or aiding in their violation are not considered in their enforcement by the courts. If one offender suffers thereby and the other gains an apparent benefit, no argument can be drawn therefrom for suspending the operation of the law. This is an incident in the administration of justice against which neither Legislatures nor the courts can provide. The party suffering, being in delicto, cannot complain of the operation of the law, for he merits the punishment prescribed for its violation. It cannot be said that the law confers upon the other a benefit because of his violation of its provisions. What he gains comes to him as a punishment of the other party, not as a reward to himself.” If the defendant herein were attempting to build for himself an affirmative case upon the alleged forfeiture, the question of his desert and the fact that he was not a party to the adjudication would be a more important consideration.

3. The construction contended for by plaintiff appellee is that the rights “acquired by the marriage” referred to in the statute are those rights and obligations otherwise owed to the “guilty party” by his spouse, the forfeiture of which would inure to the benefit of such spouse alone. The effect of this construction would be to obliterate this part of the statute and to leave it without any function whatever. Under other sections of the statute the questions of alimony and the custody of children are questions to be determined by the court in each given case. The right of dower to either party is terminated by mere force of the decree of divorce and the right of either party, whether guilty or innocent, is neither greater nor less than the right of the other, so far as the question of dower is concerned. And this was the rule at common law before the enactment of this statute and was so recognized by this court in an early day. Levins v. Sleator, 2 G. Greene, 604, 609;McCraney v. McCraney, 5 Iowa, 232, 68 Am. Dec. 702;Marvin v. Marvin, 59 Iowa, 699, 13 N. W. 851;Boyle v. Latham, 61 Iowa, 174, 16 N. W. 68;Winch v. Bolton, 94 Iowa, 573, 63 N. W. 330. This particular provision of the statute was first enacted in 1846 and appeared in the Code of 1851. It was omitted from the revision of 1860 and was not re-enacted until 1873, when it was again included in the Code. This provision of the statute, therefore, serves no function with reference to dower or to alimony or to the custody of children. It is suggested by appellee that it was enacted at a time when the rule of the common law was in doubt, and that it was intended only to be declaratory of the common law as to the effect of a decree of divorce in terminating the right of dower. This suggestion is not without its plausibility so far as the original enactment in 1846 is concerned. One difficulty with this position is that there was no doubt as to the rule of the common law in this respect at the time of the re-enactment of this provision in 1873, nor is the enactment declaratory of the common law in fact so far as the question of dower is concerned. This statute imposes a forfeiture upon the “guilty party” alone. If it were intended to determine only the question of dower, its clear implication would be that no forfeiture was imposed upon the innocent party in that respect; whereas the rule of the common law as announced by this court in its early cases holds dower to be barred to either party, whether guilty or innocent. See, also, Barrett v. Failing, 111 U. S. 523, 4 Sup. Ct. 598, 28 L. Ed. 505;Pullen...