Ickes v. Ickes
| Decision Date | 07 November 1912 |
| Docket Number | 130 |
| Citation | 237 Pa. 582,85 A. 885 |
| Parties | Ickes v. Ickes, Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 15, 1912
Appeal, No. 130, Jan. T., 1910, by defendant, from judgment of C.P. Blair Co., Jan. T., 1910, No. 272, on verdict for plaintiff in case of Mary M. Ickes v. George A. Ickes. Reversed.
Trespass to recover damages for the alleged alienation of the affections of plaintiff's husband. At the trial it appeared that on April 19, 1905, Mary M. Kinney, the plaintiff was married to George L. Ickes, defendant's son, who was then nineteen years of age. The plaintiff was twenty-five years of age and pregnant at the time of her marriage. On May 27, 1905, young Ickes enlisted in the United States Navy. Plaintiff claimed that the defendant had alienated his son's affection from his wife resulting in the desertion.
When the plaintiff was on the stand she was asked this question:
G. H. Carr, a witness for defendant having testified that he saw Mr. and Mrs. Ickes together about eight or ten days before the former left Altoona, testified as follows:
A. I stopped right in the shade of the telegraph pole and I listened and I heard him say, "Now Margaret you might as well acknowledge to me all about it, because by God if you don't there will be trouble for you," and she said "George" she says, "it doesn't belong to you." He says, "It don't," he says, "You are too far gone." She says "No, I am not, I am only about two months gone." He says, "By God, you can't fool me, you are too big," and he says "you might as well acknowledge the corn right here," so she busted out in a cry and she acknowledged to it that it didn't belong to him.
Q. Did you recognize the man? A. Why certainly I did; my time was getting a little bit short and I picked up and passes right by them.
Q. How close did you pass to them? A. They were up against the fence and I walked right along the sidewalk about the center of the walk, I was. There was no board walk there, it was just an ash walk at that time.
Q. Did you speak to either of the parties? A. I spoke to George as I went by.
Q. And you say this was just about eight or ten days before George --
Objected to.
A. Along about eight or ten days as I have previously said.
Q. Did you see George Ickes after this? A. I did.
Q. When? A. If my mind serves me right it was the Thursday before he left; I saw him coming up from his father's yard with his bucket in his hand, and when he was just about the dining room door I stepped out on my porch and whistled and called him up --
Objected to, that statements made the day before the husband left are not part of the res gestae and are irrelevant and immaterial.
By the Court: The objection is sustained and seal a bill for the plaintiff. (23)
Counsel for defendant also offers to show by C. H. Carr, the witness on the stand that the day before George Ickes left he had a conversation with this witness, in which he told the witness that he had trouble with his wife and was going to leave, and that the witness told him "I know all about it, I overheard the conversation." And he then and there told this witness that his reason for leaving was that his wife was in the family way and that he wasn't the father of the child. This happened the day before he left, and is offered for the purpose of showing his reason for leaving.
Objected to as too remote from the time of the leaving to be a part of the res gestae and is irrelevant and immaterial.
By the Court: The objection is sustained and seal a bill for the defendant. (24)
By Mr. Vaughn: Q. When did you find out that this lady, the plaintiff, that George Ickes was talking to was his wife? A. I think it was on Thursday before he went away when I called him up to the fence and he acknowledged it, the whole thing.
Objected to and asked to be stricken out.
By the Court: What George said can be stricken out.
Counsel for defendant offers to show by this witness that the Thursday before George Ickes left the plaintiff, who lived practically next door to Ickes had a conversation with George Ickes, in which George Ickes said to him that the woman he was talking with that evening was his wife.
Objected to.
By the Court: Exception noted for defendant and bill sealed. (25)
Q. Do you recognize the plaintiff as the woman who was there that evening? A. I took her to be this lady.
Verdict and judgment for plaintiff for $3,500. Defendant appealed.
Errors assigned were (1) as to remarks of counsel; (1 1/2, 2, 3, 4, 27) various rulings by which the case was left to the jury; (5, 6, 11, 12, 13 and 25) rulings on evidence quoting the bill of exceptions.
The judgment is reversed with a venire facias de novo.
W. Frank Vaughn, Thomas H. Greevy and E. G. Brotherlin, for appellant. -- In an action by a wife for enticing away her husband evidence of declarations by the husband are admissible to show what caused the separation: Williams v. Williams, 20 Colo. 51 (37 Pac. Repr. 614); Glass v. Bennett, 89 Tenn. 478 (14 S.W. Repr. 1085); Lyon v. Lyon, 197 Pa. 212; Rinesmith v. Ry. Co., 90 Pa. 262; Phillips Gas & Oil Co. v. Glass Co., 213 Pa. 183.
Giving advice to a wife, which induces her to leave her husband, is not actionable if given honestly with a view to the welfare of both parties, by one who has no special influence or authority over her: Tasker v. Stanley, 10 L.R.A. 468; Biesel v. Gerlach, 221 Pa. 232.
The declarations were not too remote from time of husband's leaving: Gilchrist v. Bale, 8 Watts 355; Rinesmith v. Ry. Co., 90 Pa. 262; Com. v. Werntz, 161 Pa. 591; Coll v. Easton Transit Co., 180 Pa. 618; Keefer v. Life Ins. Co., 201 Pa. 448.
Declarations of husband showing his real reason for leaving were relevant and material: Williams v. Williams, 20 Colo. 51 (37 Pac. Repr. 614); Scott v. O'Brien, 16 L.R.A. (N.S.) 742; Gilchrist v. Bale, 8 Watts 355.
R. A. Henderson and W. C. Fletcher, for appellee. -- Declarations to become part of the res gestae, must have been made at the time of the act done, which they are supposed to characterize; and have been well calculated to unfold the nature and quality of the facts they were intended to explain, and so to harmonize with them, as obviously to constitute one transaction: Enos v. Tuttle, 3 Conn. 247; Lush v. McDaniel, 13 Ired. 485; Rowland v. Walker, 18 Ala. 749; Powell v. State, 101 Ga. 9 (29 S.E. Repr. 309); Reg. v. Gloster, 16 Cox Cr. 471; Gilchrist v. Bale, 8 Watts 355; Kidder v. Lovell, 14 Pa. 214; Lyon v. Lyon, 197 Pa. 212.
Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.
The plaintiff brought an action of trespass against the defendant, her father-in-law, alleging that he had alienated the affections of her husband and induced him to leave her and join the U.S. Navy. She recovered a verdict upon which judgment was entered, and the defendant has appealed.
The appellant contends that the plaintiff did not produce evidence sufficient to sustain the verdict and that judgment should have been entered in his favor. The plaintiff had lived as a servant in the defendant's family, and had subsequently married his son, who was then 19 years of age, 6 years her junior, and earned only 77 cents a day. After this young man had thus improvidently become a husband and undertaken the support of a wife, who shortly expected a child, it was the right of the defendant, without incurring any liability to his daughter-in-law, to counsel with his boy and advise him in good faith as to the position in which he was placed; and in regard to any advice the father may have given, his motives would be presumed to be good. While the law would not permit him maliciously to break up the marriage, yet, since the defendant was the father of the plaintiff's husband, the measure of proof required was greater than it would have been had he been a mere intermeddling stranger; Gernerd v. Gernerd, 185 Pa 233. But, after a review of all the evidence, we cannot say that the plaintiff's proofs, if believed,...
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