Hope v. Twarling

• Decision Date: 22 March 1924
• Docket Number: 22705
• Citation: 198 N.W. 161,111 Neb. 793
• Parties: EDITH F. HOPE, APPELLEE, v. JOHN F. TWARLING, DEFENDANT: ANNA S. TWARLING, APPELLANT
• Court: Nebraska Supreme Court

198 N.W. 161

111 Neb. 793

EDITH F. HOPE, APPELLEE, v. JOHN F. TWARLING, DEFENDANT:

ANNA S. TWARLING, APPELLANT

No. 22705

Supreme Court of Nebraska

March 22, 1924

APPEAL from the district court for Polk county: EDWARD E. GOOD JUDGE. Affirmed.

AFFIRMED.

Mills Beebe & Mills and Sullivan, Wright & Thummell, for appellant.

King Bittner & Campbell and Prince & Prince, contra.

Heard before MORRISSEY, C. J., ROSE and DAY, JJ., ELDRED, District Judge.

OPINION

ROSE, J.

This case, as presented on appeal, is a controversy between Edith F. Hope, plaintiff, and Anna S. Twarling, defendant. The action was one to recover $ 25,000 for alienation of the affections of Arthur C. Twarling, a son of defendant and the former husband of plaintiff. Defendant's son and plaintiff were married August 21, 1918. Thereafter until March 10, 1919, they made their home on a farm with the parents of the husband, when they moved about 30 rods to a home of their own. The husband left his new home July 29, 1919, and sued plaintiff for a divorce October 21, 1919. His suit was dismissed on cross-petition of plaintiff who procured a decree of divorce from him, restoring her maiden name, Edith F. Hope, and awarding her $ 4,000 as permanent alimony. The present action followed, resulting in a judgment for $ 6,000 against defendant, the former mother-in-law, for alienating from plaintiff the affections of her former husband. Defendant has appealed.

The first assignment of error is directed to a preliminary order sustaining a motion by plaintiff to strike from the answer of defendant the allegation that the decree of divorce granted to plaintiff "$ 4,000 permanent alimony." Error in this respect does not seem to be shown. In an action for the alienation of a husband's affections, a prior decree of divorce may be admitted in evidence to prove marriage and the severing of conjugal relations, but it is not a former adjudication with respect to the subsequent cause of action and it does not operate as an estoppel by judgment. See cases cited in note beginning on page 943, 20 A. L. R.; Pollard v. Ward, 20 A. L. R. (289 Mo. 275) 936. Defendant in the present action was not a party to the former suit for divorce and is not entitled to any fruits of that litigation. The duty of a husband to pay for the support of a wife whose conjugal rights were destroyed by him without cause, as "alimony," is defined in Greene v. Greene 49 Neb. 546, 68 N.W. 947, is not the same as the liability of a third person to respond in damages for alienating his affections. The action by plaintiff against her former mother-in-law to recover damages for the alienation of her son's affections is based on the loss of the husband's companionship and other connubial rights or consortium, a loss not compensable in the form of alimony. 30 C. J. 1123, secs. 976, 977. In this view of the law error in striking from the answer the reference to...