Harvey v. Harvey
| Decision Date | 18 January 1906 |
| Citation | 106 N.W. 660,75 Neb. 557 |
| Parties | HARVEY ET AL. v. HARVEY. |
| Court | Nebraska Supreme Court |
Where all the codefendants join in a motion for a new trial, which is not good as to all, the motion should be overruled.
Where several defendants are proceeded against as conspirators in the commission of a tort, which would be actionable if committed by one alone, a judgment against one or more of such defendants may be sustained without proof of a conspiracy among all of them.
In an action by a wife for the alienation of the affections of her husband, evidence of the earning capacity and the financial condition of the husband is admissible as affecting the quantum of damages, if any, that the wife may recover for the loss of her husband's support.
It is not error to refuse an instruction not based on either the pleadings or the evidence.
Quantum of damages examined, and held not so clearly excessive as to suggest prejudice and passion in the award.
Commissioners' Opinion. Department No. 1. Error to District Court, Keyapaha County; Westover, Judge.
Action by Cecile Ross Harvey against Arthur P. Harvey and others. Judgment for plaintiff. Defendants bring error. Affirmed.W. C. Brown, A. L. Tingle, and L. C. Genung, for plaintiffs in error.
Lear & Wilhite, for defendant in error.
This was an action for the alienation of affections, in which the plaintiff Cecile Ross Harvey, wife of George D. Harvey, alleged that William H. Harvey, Mary B. Harvey, and Arthur P. Harvey, who are respectively the father, mother, and brother of George D. Harvey, conspired together for the purpose of estranging and alienating the affections of George D. Harvey from the plaintiff, his wife, and causing him to abandon plaintiff and refuse to live with her as her husband and to provide for her support and maintenance. The defendants answered jointly, admitting the marriage of plaintiff to George D. Harvey, and denying each and every other allegation in the petition. On issues thus joined, there was a trial to the court and jury; a verdict for the plaintiff for $3,000 damages; judgment on the verdict; and to reverse this judgment defendants bring error to this court.
The facts underlying this controversy are that for several years the defendants in this cause of action and George D. Harvey, husband of the plaintiff, have resided together on a cattle ranch in Keyapaha county, Neb., known as the “Harvey Ranch.” The two sons and the father were engaged in cattle raising, and all lived together in a large house on a quarter section of the ranch, which had been homesteaded by George D. Harvey. In 1901 the plaintiff was employed as a domestic in the Harvey household, and, during the time of her service, an intimacy sprang up between her and George D. Harvey, which resulted in furnishing plaintiff with “a child for her cradle before she had a husband for her bed.” Some time after the birth of the child, plaintiff instituted a bastardy proceeding against George D. Harvey, and in compromiseof this proceeding George D. Harvey agreed to and did marry plaintiff and took her and the child to live with the family on the Harvey Ranch. Plaintiff, prior to her marriage, had made a homestead entry on a quarter section of land about three miles from the Harvey Ranch, on which a sod house had been erected, containing little or no furniture or other conveniences of life. The evidence shows that immediately on the arrival of the plaintiff at the Harvey Ranch, defendant Arthur P. Harvey, her brother-in-law, began a well directed effort to drive plaintiff from the household and to separate her from his brother. On numerous occasions he applied all kinds of vile epithets to her in the presence of the family and told neighbors that they intended “to make it so hot for her that she would have to leave.” There was also evidence tending to show that the mother-in-law, Mrs. Harvey, co-operated to some extent in the design of her codefendant, Arthur P. Harvey, but there is practically no evidence in the record that the father, William H. Harvey, concerted with the other defendants in the matter of bringing about the separation of plaintiff and her husband. After about three weeks of her residence on the Harvey Ranch plaintiff, as she alleges, because of her ill treatment, agreed to leave the ranch and go back and live on her homestead, if her husband would come and stay with her there at nights. With this understanding, she went to the sod house on her homestead with her husband,...
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