Hodge v. Brooks

• Decision Date: 17 April 1922
• Docket Number: 311
• Citation: 240 S.W. 2,153 Ark. 222
• Parties: HODGE v. BROOKS
• Court: Arkansas Supreme Court

240 S.W. 2

153 Ark. 222

HODGE v. BROOKS

No. 311

Supreme Court of Arkansas

April 17, 1922

Appeal from Howard Circuit Court; A. P. Steel, special judge affirmed.

Judgment affirmed.

W P. Feazel and W. C. Rodgers, for appellant.

1. The court in its instructions 1 and 17 placed a greater burden on the plaintiff than is required by law in such cases. Neither were they justified by the allegations of the complaint. 88 Ark. 562; 89 Ind. 118, 127; 61 Ala 9, 11; 6 Wyo. 419; 45 P 1073; 88 Mich. 633; 48 Minn. 466.

2. The court erred in admitting, over plaintiff's objections, testimony introduced by defendant to show plaintiff's financial condition and in instructing the jury tat they could only consider the same as tending to show facts that might have caused the separation or loss of affections. 3 Ind.App. 232. Since the court later did instruct the jury that they could not consider plaintiff's poverty or his want of ability to pay his debts, etc., this amounted to a conflict in instructions justifying reversal. 123 Ark. 594, 600.

3. It was not necessary to prove any particular sum as damages, in order to recover. Proof of alienation of the wife's affections and the breaking up of the home, was sufficient. 88 Ark. 562.

Steve Carrigan, for appellee.

1. There is no error in the instruction complained of. The word "wilfully" as used therein is proper. Rodgers on Dom. Relations, § 177; 45 S.W. 652; 13 R. C. L., § 513; 75 N.W. 101; 40 N.Y. 390; 45 F. 319. The use of the word "wilful" in a civil action and instruction does not carry with it the meaning of "malice." 1 Bishop, Crim. Law, § 428; Webster's New Int. Dict., "Wilful"; 162 F. 556; 91 N.W. 904; 109 S.W. 1047; 91 S.W. 1123; 79 Id. 1111; 181 Mo. 192; 92 S.W. 674; 194 Mo. 377; 92 S.W. 684; 194 Mo. 717; 98 S.W. 2; 200 Mo. 1; 84 S.W. 984, 186 Mo. 174; 64 A. 194.

2. The gist of the action is the loss, without justifiable cause, of the comfort, society and services of the wife. If plaintiff's loss in this case was caused by the voluntary act of the wife, upon justifiable cause, he cannot recover. If the loss was caused by the acts or persuasions of the defendant without any real cause, and in bad faith towards the plaintiff, he may recover; but the burden is on him to prove these facts. 40 N.Y. 390; 48 S.W. 601.

OPINION

SMITH, J.

Appellant Hodge was the plaintiff below, and sued to recover damages for the alleged alienation of the affections of his wife by appellee Brooks, defendant below. The testimony made a case which would have supported the verdict had it been in Hodge's favor, although no attempt was made to show that any immoral relation ever existed between Brooks and Mrs. Hodge, nor was there any testimony that these two had ever been seen in a compromising position, the nearest approach thereto being that it was testified that on one occasion Brooks showed Mrs. Hodge how to drive an automobile and during the lesson had his arm resting on the seat back of his pupil. This occurred, however, in the day-time and on one of the principal streets of the town of Mineral Springs.

Hodge and his wife resided in a house with Brooks, the house being one Brooks had rented in the town of Mineral Springs. The testimony shows that Brooks became dissatisfied with this arrangement and ordered Hodge to vacate. This order was given and obeyed in February, 1921. In April thereafter Mrs. Hodge left her husband and returned to her people, who lived in an adjoining county, where she has since resided, and in September thereafter Hodge brought this suit.

The conduct of Brooks complained of consisted principally of assistance to Mrs. Hodge in the discharge of her domestic duties and little personal services about the house; of carrying her from her home in Mineral Springs in an automobile owned by Brooks to Saratoga, ten miles away, where she taught school; and in lending her money on two occasions, first to buy a knitting machine which cost about $ 75, and afterwards to buy a suit costing about $ 40. In explanation of this testimony, it was shown that Hodge and his wife were comparatively a young couple; that Brooks was sixty-four years old, and badly crippled with rheumatism, using two canes when he walked; that Brooks was physically unable to work, but his financial condition permitted him to live without working; that he drove Mrs. Hodge to her school at her husband's request and upon his promise to pay for the service; that, as Brooks had no regular employment, he assisted in the discharge of many of the little duties around the house as a matter of occupation and courtesy; and that the money loaned was lent with the knowledge and at the request of Hodge; and that Brooks had done nothing to induce Mrs. Hodge to leave her husband.

Over Hodge's objection the court admitted testimony to the effect that Hodge did not pay his bills and that his credit was not good. The error of this action was mitigated somewhat by an instruction numbered 8, given at Hodge's request, reading as follows: "You cannot take into consideration the poverty or want of ability of the plaintiff to pay his debts; nor the fact that the defendant, Brooks, may think that he does not give his wife the pleasures and luxuries that he, Brooks, thinks she ought to have in this case, since such matters do not justify the alienation of the affections of the plaintiff's wife from him, if they have been alienated."

If it be true that this instruction did not remove the prejudice arising out of the admission of the incompetent testimony, then it may be said that the error was an invited one. Hodge first testified in his own behalf, and then called as a witness Dr. Toland. It was stated at the time that Dr. Toland was being called out of time, as he had to leave town to visit a patient, and that the testimony was being offered in rebuttal. However, at that time there was nothing to rebut, as Hodge alone had testified. Dr. Toland was the owner of the house which Brooks had rented at the time Hodge and his wife were living with him. Dr. Toland testified that Hodge's credit was good, and that he had never hesitated to attend either Hodge or his wife professionally, whether they had the cash money to pay for his services or not.

Numerous objections are urged to the instructions given in the case but we think those which require discussion are disposed of by what we shall say in regard to instructions numbered 1 and 17 and another numbered 3 given at the request of Brooks and over Hodge's objection. Instruction numbered 1 reads as follows: "You are instructed that, in order for the plaintiff to maintain this action against the defendant, the burden devolves upon the plaintiff to show by a preponderance of the testimony that the defendant in this case wrongfully and wilfully attempted to alienate the affections of the plaintiff's wife, and that he wrongfully and wilfully attempted to deprive the plaintiff of his...