Hayward v. Ham

• Citation: 29 S.W.2d 243
• Decision Date: 03 June 1930
• Docket Number: No. 21022.,21022.
• Parties: HAYWARD v. HAM et ux.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

29 S.W.2d 243

HAYWARD v. HAM et ux.^*

No. 21022.

St. Louis Court of Appeals. Missouri.

June 3, 1930.

Rehearing Denied June 18, 1930.

Appeal from Circuit Court, Marion County; Charles T. Hays, Judge.

"Not to be officially published."

Suit by Iva Ethelyn Hayward against Charles P. Ham and wife. There was a verdict for plaintiff, and, from an order granting new trial on defendant's motion, plaintiff appeals.

Affirmed.

Rendlen, White & Rendlen, of Hannibal, Elmer O. Jones, of LaPlata, and Lane B. Henderson, of Shelbina, for appellant.

Waldo Edwards, of Macon, Harry J. Libby, of Shelbina, and William A. Diemer, of Palmyra, for respondents.

HAID, P. J.

This is a suit for alienation of affections brought by plaintiff against the parents of her husband. Plaintiff recovered a verdict for $7,000, which was set aside and new trial granted on motion of defendants. The appeal is prosecuted by plaintiff from the order granting the new trial.

The order granting the new trial recites that it was granted "upon the ground alone that the court admitted evidence offered by the plaintiff that was incompetent and prejudicial to the defendants over the objections and exceptions of the defendants' counsel made at the time." The order, however, does not point out the evidence which was regarded as incompetent.

A reference to the remarks of the court, at the time the motion for new trial was sustained, indicate that he had in mind the admission of evidence as to two matters. One is referred to as the mower incident. The plaintiff's testimony as to this is that she and her husband were at the home of his parents, and her husband was preparing to take a mowing machine to his home and then return for plaintiff in a car. When he started to leave with the mowing machine his mother, Sarah A. Ham, said there was no sense in his waiting on plaintiff like that, "why don't you go on the mowing machine with him," and, when plaintiff demurred, his mother said, "It would not hurt you, go on anyhow, no sense in Elmer waiting on you like that." The evidence shows that plaintiff was pregnant at the time; that the mower had iron wheels, and that the distance to be traveled was three miles over rough roads. This incident was not shown to have had anything to do with a miscarriage which occurred several months thereafter, and, therefore, was not admissible as showing a wanton disregard of the plaintiff's condition, but, it seems to us, that it was a link in the chain of events, if true, to indicate some malice of the mother-in-law towards her son's wife, or at least it tended to show a lack of that sympathetic regard that might be expected from a mother-in-law for the wife of her son in a pregnant condition, and, for that purpose was admissible.

The second matter that the court seems to have had in mind in granting the motion for new trial was the testimony of the plaintiff that her husband assigned, as his reason for leaving her, that "my daddy will disinherit me if I don't go."

The additional record discloses the following proceedings:

"Q. Now Miss Hayward, when your husband came driving back with the wagon about 4 o'clock in the afternoon, after the occurrence you told the court and the jury about here, what happened between you and your husband? A. He came in, sat down by the stove and pulled me down on his lap.

"Q. Ten days or two weeks before he finally left you? A. Yes sir.

"Q. Did he caress you? A. Yes, sir.

"Q. Did he cry? A. Yes, sir, he cried.

"Q. Did he make any statement to you that he had or had not been talking to his mother and father, not asking what he said? A. Yes, sir, he told me that he had been talking, he gave a statement his father had made.

"Q. Did he cry about the matter when he talked to you? A. Yes, sir, he did.

"Defendants' counsel objects to the leading character of the question.

"The Court: Objection sustained.

"Mr. Rendlen: If turn the matter loose, get matter in be objectionable, trying to avoid that.

"The Court: That was too leading.

"Q. Now tell what happened, what you said to your husband and what he said to you with respect to the state of his feelings toward you, if he made any statement with respect to that, one way or the other, and about staying with you or not staying with you, if such made, avoiding about any statement his mother or father made about his leaving or not leaving, if you can tell us what happened in a way? A. He told me, `that he had to leave me.'

"Q. Did he cry about it? A. Yes, sir, he cried about it, and he also told me, `he married me because he loved me, he still did, but I have got to go.'

"Q. This all happened when he returned from his mother's and father's? A. Yes, sir, he also told me why he had to go.

"(Not in the presence of the jury.)

"Mr. Rendlen: In this conversation the witness will testify, if permitted and make proffer thereof, that he stated that he did not want to leave her, but he would have to, and that he loved her, but `that his daddy told him that he had to, and that if he did not his daddy would disinherit him,' his father so told him.

"The Court: Part of that would be competent, already in, all of it except the portion, this portion, `that his daddy told him that he had to leave, and that if he did not leave he would be disinherited' that is the only new matter proffered here now.

"Defendants' counsel objects to that for the reason, no statement by Elmer Hayward could in any way bind the defendants Charles or wife Sarah, because made outside of their presence and hearing, and is not competent for any purpose in the case and is hearsay.

"The Court: I think that should be sustained; I don't believe the law of Missouri would permit the reception of statements reported by the husband to the wife, as having been made to him, by one or the other or both of the defendants; the court in its ruling has manifested its perfect willingness to permit the examining counsel to develop from this witness, so far as he may be able to do so, all expressions or manifestations of affection that he had used or made towards his wife, and any statement he may have made as to what he was going to do, and why he was doing it, whether he wished to do it or not, and anything else along the same or similar lines that he can develop so long as he does not — the witness does not testify to statements reported by her husband to have been made by one or the other of the defendants.

"Mr. Rendlen: One other matter want to proffer, failed to include in the proffer, in this same conversation, in the course of the conversation that then ensued, attempt to put in under the rule and authority of Your Honor, this statement made by Elmer Ham to this witness, and in the presence of the witness' mother, Mrs. Hayward, said, `I married her' meaning the plaintiff, `because I loved her and I still do, but my daddy says I have got to go and leave her.'

"The Court: I am not clear, this last proffer, statement was made in the presence of Chas. Ham?

"Mr. Rendlen: No, neither of the defendants were there.

"Defendants' counsel objects for the same reason assigned before.

"The Court: Permit the witness to testify to everything said by the husband to her, except reported statements or purported statements made by either defendant to the witness' husband.

"(In the presence of the jury.)

"Q. Miss Hayward, on this occasion you have been telling us about, did your husband tell you this, not say, because the court ruled out everything your husband may have told you his mother or father may have said, that we can't tell in testimony here, did your husband say anything about going away on this occasion when he pulled you down on his lap and he cried? A. Yes, sir, he says, `I have got to go, my daddy —'

"Q....