Holcombe v. Whitaker

Citation294 Ala. 430,318 So.2d 289
PartiesM. C. HOLCOMBE, Jr. v. Joan WHITAKER. SC 909.
Decision Date31 July 1975
CourtSupreme Court of Alabama

Roderick Beddow, Jr., Birmingham, for appellant.

Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellee and cross-appellant.

SHORES, Justice.

This is an appeal from a judgment which was rendered on a jury verdict in favor of the plaintiff in the amount of $35,000. The defendant filed a motion for judgment notwithstanding the verdict or a new trial. The trial court conditioned its overruling of the motion for new trial by requiring a remittitur from the plaintiff in the amount of $15,000. The remittitur was filed and the motion for new trial overruled. The defendant appealed from the original judgment and the plaintiff filed a cross-appeal, assigning as error the condition of a remittitur for the overruling of defendant's motion for new trial.

The plaintiff, Joan Whitaker, met the defendant, M. C. Holcombe, Jr., a medical doctor, in March or April, 1970. Shortly thereafter the two began seeing each other socially; and about a month later the defendant moved into the plaintiff's apartment, where they lived together for sometime. It was the plaintiff's testimony that the defendant told her he was a divorced man. Sometime after the defendant moved into the plaintiff's apartment, he invited her to accompany him to a medical convention in San Francisco. She did so, and testified that she was asked by the defendant to pose as Mrs. Holcombe at that meeting. Following the convention, the two flew to Las Vegas, Nevada, and were married there. They left Las Vegas and went to New Orleans for a 'honeymoon' and finally returned to Birmingham, where they lived together as husband and wife for approximately a month. At about that time, Dr. Holcombe began seeing a woman he had been dating prior to his marriage to the plaintiff. He had previously told Miss Whitaker that he wanted to tell this woman personally about his having married. When the plaintiff objected to his resuming his relationship with this woman, he then told her that he was still married to his first wife. She then asked him to either have the marriage with her annulled or get a divorce from his first wife and marry her legally. Her testimony was that the defendant said 'he wasn't going to do either one.'

To say the least, the relationship between Miss Whitaker and Dr. Holcombe began to disintegrate from this point forward. He moved out of the apartment, but came back from time to time, staying for as long as a week on at least one occasion. The plaintiff continued to ask him to get an annulment or to get a divorce from his wife and legally marry her. She went to the apartment occupied by the woman the defendant was then seeing again and found him there. Again, she had a conversation with him about getting an annulment. On that occasion he said 'If you take me to court, I will kill you.'

From that point on, the plaintiff testified that she began receiving telephone calls from Dr. Holcombe and from his lady friend all hours of the night. She also received anonymous calls.

There was other evidence to the effect that, after Dr. Holcombe threatened the plaintiff the first time, she moved to another apartment and got an unlisted telephone number. For a period of time the calls from Dr. Holcombe and his friend stopped. Then her apartment was broken into and some of her clothes were soaked with what later appeared to be iodine. Thereafter, the calls resumed. After the break-in, she had new locks put on the door and the windows were nailed closed. She also had friends spend the night with her thereafter.

The plaintiff filed the instant suit in September, 1971. In October of that year, Dr. Holcombe went to her apartment. When she refused to let him in, he began to beat on the door, tried to get in, and again said 'If you take me to court, I will kill you.'

The complaint charges the defendant with fraud and misrepresentation in that he had fraudulently misrepresented to the plaintiff that he was unmarried and that, relying on such misrepresentation, she married him. The averments are that as a proximate consequence of the fraud, the plaintiff was injured and damaged as follows: 'She suffered grievous mental anguish and humiliation, her nervous system and emotional system was permanently injured . . .' A second count claimed damages for assault.

Although the defendant assigns some sixty-odd grounds for reversal, he argues the following issues only:

The court should have granted his motion for a directed verdict on the fraud count, because he contends the plaintiff failed to offer any evidence that she had suffered any damage. It is the defendant's contention that proof of actual damage was necessary to the plaintiff's cause of action; that the plaintiff failed to prove such damage; and thus the fraud count should not have been submitted to the jury.

While this is the first case to come before this court seeking damages for fraudulently inducing one into an illegal or void marriage, we have long recognized, as actionable, misrepresentations made with intent to deceive, relied on by and resulting in damages to the injured party. Thus, we have no hesitancy in joining a number of states in expressly holding that when one wrongfully induces another into a marriage, by misrepresenting or concealing facts which render the marriage void, the person so deceived is entitled to an action for damages. Morris v. MacNab, 25 N.J. 271, 135 A.2d 657 (1957), the subject of an annotation found in 72 A.L.R.2d 956. See also Restatement of the Law of Torts, Vol. III, § 555 (1938). The defendant, however, argues that no recovery in such a case can be had for mental suffering alone but, in addition, there must be damages to the person, reputation or estate. In answering that same contention made by the defendant in Morris v. MacNab, supra, the Supreme Court of New Jersey said:

'. . . we reject the defendant's first point and come now to his second point in which he contends that the plaintiff's first count, which sought recovery for shame, humiliation, and mental anguish, should have been dismissed by the trial court. The defendant cites authorities which indicate that, absent physical injuries, damages for shame, humiliation, and mental anguish are not recoverable where the actor is simply negligent. See Prosser, supra (Torts, 2d Ed. 1955), at p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all recognize that where the wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and proximate consequences though they consist of shame, humiliation, and mental anguish. . . . Prosser, supra, at p. 38. Here the defendant's conduct was not merely negligent, but was willfully and maliciously wrongful. It was bound to result in shame, humiliation, and mental anguish for the plaintiff, and when such result did ensue the plaintiff became entitled not only to compensatory but also to punitive damages. . . .' (25 N.J. at 280, 135 A.2d at 662)

We agree with this statement and find it consistent with the law in Alabama. See Alabama Great Southern R. Co. v. Sellers, 93 Ala. 9, 9 So. 375 (1890).

The defendant also argues in connection with the issue of damage that the trial court erred in refusing evidence that, prior to this marriage, the plaintiff suffered from veneral disease, had an abortion, and had affairs with many other men. Of course, the defendant must face the general rule that prohibits evidence of general character as primary evidence. See, e.g., Phillips v. Ashworth, 220 Ala. 237, 124 So. 519 (1929). Yet, the defendant cites us to an exception to this rule, that is, if character or reputation becomes a matter in issue, evidence with reference to such a party's reputation or character is admissible. While this is a correct statement of the law, we do not find that the plaintiff's character was placed in issue in this case. She did not sue the defendant for fraudulently inducing her to have sexual relations with him; she sued him for fraudulently inducing her to enter into a void marriage with him. In Lester v. Gay, 217 Ala. 585, 587, 117 So. 211, 213 (1928), which, unlike this case, involved a claim by the plaintiff against the defendant doctor for an alleged indecent assault, we said:

'. . . the reputation of the female plaintiff for chastity cannot be put in issue by the defendant, nor can specific acts of impropriety be shown in mitigation . . .'

The plaintiff's reputation or character was not in issue here; nor did she open the door for the defendant to attack her character. Therefore, such evidence was properly excluded.

The defendant next argues that the court erred in refusing to give a requested charge which sought to instruct the jury that intent to deceive was a necessary element in the plaintiff's cause of action. There was no error in refusing this charge, since the trial court adequately instructed the jury in its oral charge on this issue. In its charge to the jury, the court said:

'Now, of course, a fraud and a thing of that sort has to do with knowingly saying something that is untrue. . . .

'. . . But if he knew he was married, and if he intentionally told her that in order to do something or the other that she would not otherwise do, and did induce her to do that, that would be what we would call fraud . . .

'. . .

'And I will say this with reference to County Number One, which deals with that sort of thing, that if she, from any source, knew before she married him that he was married and not divorced, if she knew that, then, of course . . . she could not recover from him. . . .'

There is no error to reverse on this ground. Boise Cascade Corp. v. Lee, 291 Ala. 666, 286 So.2d 836 (1973).

The next issue argued by defendant concerns the assault count. The plaintiff claimed that the defendant...

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