Hollinghausen v. Ade

• Decision Date: 19 July 1921
• Parties: GRACE D. HOLLINGHAUSEN v. EMMA ADE, Appellant
• Court: Missouri Supreme Court

233 S.W. 39

289 Mo. 362

GRACE D. HOLLINGHAUSEN v. EMMA ADE, Appellant

Supreme Court of Missouri, Second Division

July 19, 1921

Rehearing Denied 289 Mo. 362 at 380.

Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.

Affirmed.

Walsh & Aylward and E. A. Setzler for appellants.

(1) The court erred in refusing to give the peremptory instruction requested by the defendant instructing the jury to find for the defendant, and also erred in refusing to sustain the demurrer of the defendant offered at the close of the plaintiff's evidence. (a) The evidence is insufficient to sustain the verdict. Leavel v. Leavel, 122 Mo.App 666; Cornelius v. Cornelius, 233 Mo. 29; Barton v. Barton, 119 Mo.App. 528; Nichols v. Nichols, 134 Mo. 194; White v. Ross, 47 Mich. 172; Rice v. Rice, 104 Mich. 371; Young v. Young, 8 Wash 81; Cooper v. Cooper, 171 P. 7; Corrick v Dunham, 147 Iowa 320, 126 N.W. 150; Wolf v. Wolf, 164 N.W. 107; Potter v. Hosser, 177 N.W. 170; Bruce v. Galvin, 183 Iowa 145, 166 N.W. 787; Cash v. Childers, 176 Ky. 448, 195 S.W. 191; Bourne v. Bourne, 185 P. 496. (b) The evidence upon the issue of marriage was insufficient. Perkins v. Silverman, 223 S.W. 901; Cargile v. Wood, 63 Mo. 514; State v. Cooper, 103 Mo. 273; Williams v. Williams, 259 Mo. 552, 169 S.W. 619; Bishop v. Brittian Inv. Co., 229 Mo. 730, 129 S.W. 677, Ann. Cas. 1912A, 868; Topper v. Perry, 197 Mo. 548, 95 S.W. 208, 114 Am. St. 777; Clayton v. Wardell, 4 Comst. 230; Cunningham v. Cunningham, 2 Dow, P. C., 482. (2) The court erred in modifying and giving as modified Instruction "G." Geromini v. Brunelli, 214 Mass. 492, 102 N.E. 67; Modisett v. McPike, 74 Mo. 640; Hartpence v. Rogers, 143 Mo. 633; Barton v. Barton, 119 Mo. 519; Butterfield v. Ennis, 193 Mo.App. 638, 186 S.W. 117; DeFord v. Johnson, 251 Mo. 255; Leavel v. Leavel, 122 Mo.App. 658; Murdock v. Dunham, 206 S.W. 915; Hall v. C. & C. Co., 260 Mo. 351; Potter v. Hosser, 177 N.W. 169; Stillwell v. Stillwell, 172 N.W. 177; Servis v. Servis, 172 N.Y. 438, 65 N.E. 271; Hall v. Smith, 80 Misc. 85, 140 N.Y.S. 796. (3) The court erred in modifying and giving as modified Instruction "B." Authorities under point 2. (4) The court erred in giving plaintiff's Instruction "E." DeFord v. Johnson, 251 Mo. 256; Yowell v. Vaughn, 85 Mo.App. 211; Wolf v. Wolf, 181 N.Y.S. 372; Beach v. Brown, 20 Wash. 266, 43 L. R. A. 114, 72 Am. St. 98; Prettyman v. Williamson, 1 Penn. (Del.) 224; McNamara v. McAllister, 150 Iowa 243, 34 L. R. A. (N. S.) 436, 130 N.W. 26, Ann. Cas. 1912 D. p. 463; Bergman v. Solomon, 143 Ky. 581, 136 S.W. 1010; Purdy v. Robinson, 133 A.D. 155, 117 N.Y.S. 295; Sockheim v. Miller, 136 Ill.App. 132. (5) The court erred in refusing to give defendant's Instruction 1. Leavel v. Leavel, 122 Mo.App. 654; Geromini v. Brunelli, 214 Mass. 492. (6) The court erred in refusing to give defendant's Instruction 2, 3, 4 and 6. Metcalf v. Tiffany, 106 Mich. 504, 64 N.W. 479. (7) The court erred in refusing to give defendant's Instruction 5. Nichols v. Nichols, 147 Mo. 393. (8) The court erred in refusing to give defendant's Instruction 10. Allen v. Forsythe, 160 Mo.App. 267; Miller v. Miller, 154 Iowa 344, 134 N.W. 1038; Baird v. Corle, 157 Wis. 565, 147 N.W. 834; Powell v. Benthall, 136 N.C. 145; McGregor v. McGregor, 115 S.W. 802; Luick v. Arends, 21 N.D. 614, 132 N.W. 353. (9) The court erred in not limiting certain evidence by instruction which was received for the sole purpose of showing the state of mind, or affection, of the person making the statements. McGinnis v. McGlothlan, 192 Mo. App., 144; Hayes v. Hayes, 242 Mo. 155, 271; Teckenbrock v. McLaughlin, 209 Mo. 550; Hardwick v. Hardwick, 130 Iowa 230; Miller v. Miller, 154 Iowa 344. (10) The court erred in setting aside the general verdict returned as to both defendants, granting unto the defendant Carl Ade a new trial after the verdict had been received and recorded, permitting plaintiff to dismiss as to him and in entering a judgment against this defendant for the full amount thereof. Sec. 2097, R. S. 1909; Mo. Constitution, sec. 10, art. 2; sec. 28, art. 2; sec. 30, art. 2; Dartmouth College Case, 4 Wheat. 518, 4 L.Ed. 629. (11) The court erred in refusing to sustain defendant's motion for a new trial for the reason that the jury absolutely ignored and disregarded the instructions of the court and refused to consider or follow the same. Shohoney v. Railway, 223 Mo. 649; Hitz v. Railway Co., 152 Mo.App. 687; Payne v. Railway Co., 129 Mo. 405; Ellis Lbr. Co. v. Johns, 152 Mo. 516. (12) The verdict of the jury was grossly excessive, the result of passion and prejudice against the defendants, and the defendants were thereby deprived of a fair and impartial trial. Spohn v. Railway Co., 87 Mo. 84; Spiro v. Transit Co., 102 Mo.App. 250; Fuller v. Robertson, 230 Mo. 32; Allen v. Forsythe, 160 Mo.App. 262; Hughey v. Eysell, 167 Mo.App. 565; Dailey v. City of Columbia, 122 Mo.App. 21; Winkelman v. Maddox, 119 Mo.App. 658; Miller v. Dryden, 34 Mo.App. 602; Eichelman v. Weiss, 7 Mo.App. 87; Ferguson v. Thacher, 79 Mo. 511; Schweickhardt v. St. Louis, 2 Mo.App. 583; Crow v. Crow, 124 Mo.App. 125; Spalding v. Bank, 78 Mo.App. 374; Beshars v. Banking Assn., 73 Mo.App. 293; Plate Glass Co. v. Peper, 96 Mo.App. 505; Singleton v. Exposition Co., 172 Mo. 306; Dyer v. Combs, 65 Mo.App. 152; Haumueller v. Ackerman, 130 Mo.App. 390; Newton v. Railroad, 168 Mo.App. 199; Cottell v. Pub. Co., 88 Mo. 356; Poulson v. Collier, 18 Mo.App. 604; Real Estate Co. v. Surety Co., 276 Mo. 183; Wonderly v. Haynes, 186 Mo.App. 82; Hurley v. Kennally, 186 Mo. 225; Miller v. United Rys., 155 Mo.App. 547.

J. M. Johnson, L. N. Dempsey and Donald W. Johnson for respondent.

(1) On demurrer to the evidence. (a) The evidence is sufficient to sustain the verdict. Claxton v. Pool, 182 Mo.App 13; Knapp v. Knapp, 183 S.W. 576; Wagner v. Wagner, 204 S.W. 390; Surbeck v. Surbeck, 208 S.W. 645; Nichols v. Nichols, 147 Mo. 387; Linden v. McClintock, 187 S.W. 82; Yowell, v. Vaughn, 85 Mo.App. 206. (b) The evidence upon the issue of marriage is sufficient. Perkins v. Silverman, 223 S.W. 895; State v. Cooper, 103 Mo. 273; Cargile v. Wood, 63 Mo. 501; Butterfield v. Ennis, 193 Mo.App. 638; Davis v. Stouffer, 132 Mo.App. 555. (2) Not necessary to show that there was affection and that defendant had completely alienated it. DeFord v. Johnson, 152 Mo.App. 209; Linden v. McClintock, 187 S.W. 82; 3 Elliott on Evidence, sec., 1650; 15 Am. & Eng. Ency. Law (2 Ed.) 862; DeFord v. Johnson, 251 Mo. 244. (3) There was no error in the giving of modified Instruction "G." Nichols v. Nichols, 147 Mo. 387; Barton v. Barton, 119 Mo.App. 507; Modisett v. McPike, 74 Mo. 636; Hartpence v. Rogers, 143 Mo. 633. (4) Plaintiff's modified Instruction "B," is correct. Authorities under Point 3. (5) There is no error in Instruction "E." The evidence strongly tends to show actionable interference between husband and wife by the defendant from the date of the separation, March 31, 1917, which continued until the death of the husband on June 9, 1917. Plaintiff was entitled to recover all damages she sustained in consequence of such interference, including the destruction of her right to consortium. Nichols v. Nichols, 147 Mo. 387. (6) The court did not err in refusing to give defendant's Instruction No. 1, since there was ample evidence to take to the jury the question of actual malice. Butterfield v. Ennis, 193 Mo.App. 638. Where, as here, the defendant attacks the character of the plaintiff, no other proof of actual malice would be required. Therefore the charge that plaintiff was not the wife, but was the mistress of defendant's brother if untrue will support a finding of actual malice. Cornelius v. Cornelius, 233 Mo. 1, 25. (7) Defendant's Instructions 2, 3, 4 and 6 were properly refused. The divorce and settlement therein of property rights did not preclude plaintiff from maintaining her action for alienation of affections. DeFord v. Johnson, 251 Mo. 244; 21 Cyc. 1620; Clow v. Chapman, 125 Mo. 101; Modisett v. McPike, 74 Mo. 646; Nichols v. Nichols, 147 Mo. 387. (8) There was no error in refusing defendant's Instruction Number 5, which as a prerequisite to a recovery by plaintiff required the jury to find that the defendant "lawfully and maliciously induced the said Carl Hollinghausen to cease to live with plaintiff, etc." The gravamen of the cause of action submitted to the jury was not that the defendant caused the separation, but that she prevented a reconciliation. DeFord v. Johnson, 152 Mo.App. 209; Linden v. McClintock, 187 S.W. 82. (9) There was no error in refusing defendant's Instruction 10. (a) Because there is no initial presumption of good faith on the part of a brother or sister who interferes in the marital relations of a plaintiff. Barton v. Barton, 119 Mo.App. 529. (b) The instruction was fully covered in defendant's Instruction 15 given by the court. (c) There is no room in this case under the evidence for indulging in initial presumptions, since the rule is well settled that presumptions should not be indulged where the issue of fact is fully covered by evidence. Wizon v. Railroad Co., 141 Mo. 425; Lynah v. Street Ry. Co., 112 Mo. 420; Stack v. Baking Co., 223 S.W. 97. (d) The instructions throughout both for plaintiff and defendant imposed the burden of proving malice where it belonged, upon the plaintiff, and the verdict of the jury necessarily found that the defendant had not acted in good faith, but in malice. (10) In view of the peremptory instruction to the jury to return a verdict for the defendant, Carl Ade, the court did not err in setting aside the verdict as to that defendant and permitting the plaintiff to dismiss him from the action, and then entering judgment on the verdict against the remaining defendant, Emma Ade...