Hayward v. Ham

• Decision Date: 02 May 1933
• Docket Number: No. 21022.,21022.
• Parties: HAYWARD v. HAM et ux.
• Court: Missouri Court of Appeals

59 S.W.2d 725

HAYWARD v. HAM et ux.

No. 21022.

St. Louis Court of Appeals. Missouri.

May 2, 1933.

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

"Not to be published in State Reports."

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

Reversed and remanded, with directions.

Rendlen, White & Rendlen, of Hannibal, Elmer O. Jones, of La Plata, 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.

SUTTON, Commissioner.

This action was instituted by plaintiff on February 15, 1928, in the circuit court of Macon county, to recover damages for the alienation of her husband's affections. On March 27, 1928, on application of the defendants, a change of venue was granted by the circuit court of Macon county to the circuit court of Shelby county. On October 11, 1928, on application of the plaintiff, a change of venue was granted from the circuit court of Shelby county to the circuit court of Marion county. On February 26, 1929, a trial was had, with a jury, in the circuit court of Marion county, resulting in a verdict and judgment for plaintiff for $7,000. On May 24, 1929, the court, as shown by its order entered of record, sustained defendants' motion for a new trial, granting them a new trial, "upon the ground alone that the court admitted evidence offered by plaintiff that was incompetent and prejudicial to the defendants." From this order plaintiff appeals.

Under a former submission here, the order granting a new trial was affirmed. The opinion affirming the order, which is reported in (Mo. App.) 29 S.W.(2d) at page 243, was quashed by the Supreme Court on certiorari. The opinion of the Supreme Court, quashing the opinion of this court, is reported in 51 S.W.(2d) at page 79. The cause has now been again submitted here, and defendants have resubmitted a number of questions not disposed of in the former opinion of this court.

Plaintiff and Elmer Harmon Ham were married in Macon county, on April 12, 1925. He deserted her on November 10, 1925, and went to Arizona. He never afterwards returned to her. Some time after the desertion, just when does not appear, she obtained a divorce from him in the Macon county circuit court.

Plaintiff testified in her own behalf as follows:

"I am twenty-four years old. I was raised in Macon County, in the country on a farm. I was married to Elmer Ham on April 12, 1925, in the city of Macon, in Macon County. I had been living in Macon before my marriage from December until April. I had been living with my mother on her farm before that. The farm contained eighty acres with a five-room frame house. My father is dead. He had been dead about three years before my marriage. My sister Fern is about sixteen years old. The defendants, Charles P. Ham and Sarah A. Ham, at the time of my marriage lived two or three miles from mother's farm. I first became acquainted with Elmer Ham in the fall of 1921. Elmer is six or seven years older than I am. We did not commence going together until March, 1922. I became engaged to Elmer in November, 1924. In December, after our engagement, he went to Oklahoma. He went to Oklahoma about a week before we moved to Macon. I was raised on the farm containing eighty acres I have been telling about, and have spent my life as a farm girl. The defendants, Charles P. Ham and Sarah Ham, moved to our neighborhood about a year before my father died. That was some three years before I met Elmer. They had not lived in Macon County before that. They came from Oklahoma.

"I talked with Mr. and Mrs. Ham about my engagement to Elmer at Tipton's dance on January 20th. Mr. Ham said, `That girl in Oklahoma has beat your time.' Mrs. Ham said that she thought Elmer would marry the girl in Oklahoma; that she hoped he did, that she was a school-teacher, and could help make the living, and that I was a girl that could not, that I was weak, and sick so much of the time and could not do much, and that I would not be the woman or the wife for Elmer. I was still engaged to Elmer and expected to marry him, but Mrs. Ham said she hoped he would marry the girl in Oklahoma. My mother was present at that conversation. Her name is Lydia A. Hayward.

"Elmer returned from Oklahoma in March. We were living in Macon when he came back. Elmer went to live with his mother and father when he came back.

"Elmer and I were married at my mother's home in Macon. The ceremony was performed at about 7:30 in the evening. The arrangement was that the ceremony was to be performed at 7 o'clock. Mr. and Mrs. Ham were invited to attend the wedding. They were advised of the hour and place the wedding would occur. The wedding was delayed because Mr. and Mrs. Ham had not arrived. We waited a half hour and they did not arrive, and Elmer said to go ahead with the wedding. After the ceremony was performed Mr. and Mrs. Ham arrived. Mrs. Ham came in crying. Elmer started to meet her and she put her arm around his shoulder and said, `Oh, Elmer, why did you do it, what did you marry her for, why didn't you wait?' She went on crying, and Elmer went to crying, and we went out to the kitchen. I said, `Elmer, you should not cry like this,' and he said, `I can stand anything but see my mother cry, I can't stand to see her cry.' Mr. Ham did not come in the house then. He was outside. Elmer and I went out to the car. Mr. Ham had not come into the house. Mr. Ham said to Elmer, `This is a pretty way you have got of doing. What did you marry her for anyway?' Elmer said, `I don't care what you say to me, but don't talk to Iva that way,' and finally begged and coaxed him to come into the house. Although he came in I never saw him say anything to anybody all evening. Mrs. Ham was very quiet from then on. They did not wish me a happy married life, or anything of that sort. They gave me no manifestation of welcoming me into the family of the Hams.

"After the marriage we set up housekeeping on mother's farm, and we lived together there as husband and wife until the separation occurred in November. We were very happy with one another in our married life. We were fond of each other. I loved him a great deal, and I think he loved me as much. We were very devoted.

"Shortly after we moved to the farm and established our home, Elmer visited his father's home. When he came back his expression showed he had been crying. His eyes were red, and places on his face showed where there had been tears.

"Mr. Ham on various occasions when I would be visiting in his home, made remarks to the effect that I was too little, that I was not fit to be a wife, that I was too small, that I could not work, and Mrs. Ham always was making some remark to the effect that I was too little. Also Mr. Ham said if he had a woman like me, he would not consider he had any woman at all. That is the way they talked to me when I was there. Sometimes Elmer was present when they made such statements to me.

"Some time around September 20th, Elmer and I were at the home of Mr. and Mrs. Ham. We went up there on a visit. Elmer had gone after a mowing machine, and I had gone with him. I was pregnant at that time. I had been in that condition about a month or six weeks, something like that. I had told Mrs. Ham of my condition. She knew it. It was arranged that Elmer would take the mowing machine home and come and get me in the car. When Elmer wanted to go home, Mrs. Ham said to me, "`There is no sense in Elmer waiting on you like that. Why don't you go on the mowing machine with him?' I said I could not ride on that mowing machine. She said, `It would not hurt you, go on anyhow, no sense in Elmer waiting on you like that.' I finally went on the mowing machine. The mowing machine had iron wheels. The road was very rough, had not been dragged after a rain. The distance I rode on the mowing machine was around three miles. I was very sick that night from the effects of riding on the mowing machine.

"On several occasions I heard Mrs. Ham make statements to Elmer about leaving me. I heard her tell him several different times that he had better leave me. One time she told him he had better leave and leave right now, that he could not make a living for a woman and a baby. When she would say that to him, he never would answer.

"I never had any serious quarrel with my husband during the period of our married life. We got along fine together.

"About ten days or two weeks before Elmer finally left me, Mrs. Ham called over the phone and told me to tell Elmer that his father said for him to bring the wagon home after supper. Shortly afterwards she called again, and mother answered the phone. I could not hear what Mrs. Ham said, but I heard mother say, `Sure, I will tell him.' When Elmer came in at noon the telephone rang again. Mother answered the phone and called Elmer to the phone. Elmer went to the phone. I heard him say, `I will bring it right now.' He hitched up the team and took the wagon over there. He was gone until about four o'clock, and came back in the afternoon with the wagon they told him to bring. He brought the wagon back with him. When he returned with the wagon, he came into the house and sat down by the stove and pulled me down on his lap and went to crying. This was ten days or two weeks before he finally left me. He caressed me, and he cried. He told me he married me because he loved me, and he still did, but `I have got to go.' He said, `I have got to go. My daddy will disinherit me if I don't go.' I begged him to stay, and I cried, and he would tell me he had to go, and he cried. Finally the shock of the matter made me sick, and I went to bed. Elmer did not eat any supper that night. He cried all night. He did not go to bed at all. I was awfully sick all night long. Mother was not very well at the...