Hollinghausen v. Ade

• Decision Date: 26 May 1921
• Docket Number: No. 21,764.,21,764.
• Citation: 233 S.W. 39,289 Mo. 362
• Parties: HOLLINGHAUSEN v. ADE.
• Court: Missouri Supreme Court

233 S.W. 39

289 Mo. 362

HOLLINGHAUSEN v. ADE.

No. 21,764.

Supreme Court of Missouri, Division No. 2.

May 26, 1921.

Rehearing Denied July 19, 1921.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by G. D. Hollinghausen against Carl Ade and Emma Ade, his wife. From a judgment for plaintiff against Emma Ade alone, she appeals. Affirmed.

This action was brought in the Jackson county circuit court, Mo., in Kansas City, by plaintiff, Grace D. Hollinghausen, against defendants, Carl Ade and Emma Ade, his wife, to recover actual damages in the sum of $25,000 and punitive damages in the sum of $25,000 for alienating the affections of her husband, Carl Hollinghausen, and thereafter preventing a reconciliation between them. The petition alleges that they were lawfully married at Salina, Kan., on the_____day of February, 1910, and thereafter lived happily together until the 31st day of March, 1917; that May 11, 1917, she obtained a divorce from her said husband on account of certain grievous misdeeds of her said husband, which are fully set out in Exhibit A in appellant's abstract. It further alleges a wicked and malicious conspiracy between defendants, who well knew they Were so living together as man and wife, to bring about an alienation of the affections of her said husband, and a wicked and malicious attempt (which it is alleged was successful) to prevent a reconciliation between them, and prayed damages as above stated. Defendants answered with a general denial of the averments of the petition, and pleaded as defensive matter the same divorce proceedings; that said divorce was obtained by plaintiff against defendant on account of wrongs, by default, he having been duly served with summons; that pending said divorce proceedings a written contract was entered between plaintiff and her said husband, by virtue of which her right to alimony and all rights she had in defendant's estate on account of being his wife were fully adjusted and finally settled for the sum of $7,500; that said adjustment was made voluntarily, and with full knowledge on the part of plaintiff; and that it operated to estop her from recovering in the instant action. The reply was a general denial of the new matter. With the issues thus framed, trial was had before the court and a jury, which returned the following verdict:

"Kansas City, Missouri, Feb. 15, 1919. "We, the jury, dud for plaintiff and assess her actual damages at ten thousand dollars ($10,000). We further allow her exemplary damages at five thousand dollars ($5,000).

                             "George W. Ernst, Foreman."
                

Two days thereafter, to wit, February 19, 1919, the following record entries were made:

"Now the court, of its own motion, on account of errors in instructions, sets the verdict aside in this case as to Carl Ade, and grants Carl Ade a new trial of this cause."

"Now plaintiff dismisses this cause as to Carl Ade, defendant herein."

"Now the court orders judgment entered in accordance with the verdict of the jury."

—to which both defendants excepted. Said judgment was to the effect that plaintiff have and recover from defendant the amount specified in the verdict, with costs of suit, and that she have execution therefor. Then followed the usual judgment of dismissal as to Carl Ade. Defendants offered no testimony. We will further refer to the facts hereafter.

Walsh Aylward and a Setzler, all of Kansas City, for appellant.

J. M. Johnson, L. N. Dempsey, and Donald W. Johnson, nil of Kansas City, for respondent.

MOZLEY, C. (after stating the facts as above).

1. The first assignment will be determined by the evidence. Under this assignment it is insisted that the evidence was insufficient to establish a common-law marriage between plaintiff and Carl Hollinghausen.

Without setting the testimony on this point out in full, it is sufficient to state that it shows that these parties, at Salina, Kan., on the_____day of February, 1910, entered into a present agreement to become man and wife; that in a few days they returned to the home of the mother of plaintiff, at Kansas City, Mo., and introduced themselves as man and wife and received her blessings; I that he provided an elegant home, where ha and plaintiff resided happily together until March 31, 1917, about nine years; that during that time they were both anxious to have a child born, but on account of some impediment standing in the way he had an operation performed on her, which cost him about $350; that during all this time they treated I each other as man and wife, were introduced as man and wife, and were so regarded among their friends and neighbors.

The deposition of Emma Ade was taken by Plaintiff and introduced in evidence, which we quote from as follows:

"Q. Prior to that time where was his home? A. Why he lived at Twenty-Fifth and Troost.

"Q, In an apartment? A. Yes, sir.

"Q. And who lived with him or with whom did he live there at Twenty-Fifth and Troost? A. Grace Hildebrand.

"Q. She is the plaintiff in this action? A. Yes, sir.

"Q. Were they living there together in the apartment?

"Mr. Alyward: If you know.

"Q. Yes, if you know. You needn't testify to anything you don't know. Were they living there together? A. I suppose they were living there together.

"Q. I am asking you for your knowledge. Now, how do you know they were living there together? A. Why, because they were there together "Q. You saw them there? A. Yes, sir.

"Q. How long did they live there together in that apartment? A. Why, I am sure I don't know how long they lived there.

"Q. No; I don't expect you to give it accurately, Mrs. Ade, but about how long they lived in those apartments there? A. Several years.

"Q. Did any one live there with them? A. Not that I know of.

"Q. Did you visit them there in the apartments? A. Yes, sir.

"Q. About how often did you visit them there? A. Just occasionally.

"Q. Well, give us an idea about how long it was, once a week or once a month. A. Why there was for a short time once a week, and then occasionally it was longer. Sometimes a month, six weeks, eight weeks we didn't see one another.

"Q. During that two or three years that they lived there together in the apartment at Twenty-Fifth and Troost did they visit you at your house sometimes? A. Yes, sir. * * *

"Q. How often did Mr. Hollinghausen and the plaintiff visit you there at your house during the time they were living at Twenty-Fifth and Troost? A. Just as is stated before, just occasionally.

"Q. Occasionally? A. Yes, sir.

"Q. Once a week or sometimes not so often? A. Yes, sir.

"Q. Yes, and they came there and would sometimes have meals? That is, they were entertained at your house? A. Yes, sir.

"Q. And sometimes they would entertain you and Mr. Ade at their house? A. Yes, sir.

"Q. And you were on good terms with them? A. Yes, sir. * * *

"Q. State what your conversation with your brother was on that occasion. A. As I stated it was after she shot the negro; and it was in the newspapers that my brother was married.

"Q. Yes. A. I, the next day or two later, went to him and said: `Brother, if you were married, why didn't you come and tell me? I am your only sister. Why didn't you tell me you were married? I never knew anything about it.' And my brother said: `Emma, I am not married. I am simply defending Grace for fear she may have trouble about the shooting affair.'"

We think this testimony was amply sufficient for submission to the jury for their determination, and the demurrer was properly refused.

And if the first part of said demurrer was intended to strike at the sufficiency of the petition as not stating facts sufficient to constitute a cause of action against defendants, without setting said petition out further, we think it stated a cause of action, and it was good after verdict anyway. Section 2119, R. S. 1909.

A valid marriage may be entered into between parties willing and competent to contract at common law. Dyer v. Brannock, 66 Mo. 391, 27 Am. Rep. 359; State v. Cooper, 103 Mo. 266, 15 S. W. 327; State v. Hansbrough, 181 Mo. 348, 80 S. W. 900; Topper v. Perry, 197 Mo. 531, 95 S. W. 203, 114 Am. St. Rep. 777; Plattner v. Plattner, 116 Mo. App. 405, 91 S. W. 457; Butterfield v. Ennis, 193 Mo. App. 638, 186 S. W. 1173; 18 R. C. L. 391, par. 12.

The jury has determined this question in favor of plaintiff, and their verdict is binding on us.

2. Instruction G, as originally drawn, so far as is necessary to quote, reads as follows:

"If, therefore, you believe and find from the evidence that plaintiff and Carl Hollinghausen were husband and wife, and that defendant Emma Ade was intentionally guilty of such conduct as was calculated to cause their separation and to alienate the affections of the said Carl Hollinghausen, and by reason thereof the defendant did cause the affections of said Carl Hollinghausen to be alienated from plaintiff, and did cause him to separate from and abandon plaintiff," etc.

Said instruction, as modified, omitted that part of the original instruction relating to the defendant being guilty of conduct that was calculated to cause their separation. The original instruction manifestly submitted the case on a wrong theory—that of the conduct of the defendant causing the separation between these parties. The case was submitted to the jury solely on the averment in the petition that a reconciliation was wickedly and maliciously prevented between plaintiff and her husband; that he was kept separate and apart from her and communication between them prevented.

3. Where an instruction tenders to the finding of the jury the facts of an issue not in the case, it is erroneous, and would have been reversible error. De Donato v. Morrison, 160 Mo. 581, loc. cit. 591, 61 S. W. 641; Glass v. Gelvin, 80 Mo. 297; Silverthorne v. Summit Lumber Co., 190 Mo. App. 716, 176 S. W. 441. We rule that said instruction was correct as modified, and overrule defendant's objection thereto.

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