Jennings v. Cooper

• Decision Date: 02 May 1921
• Docket Number: No. 13709.,13709.
• Citation: 230 S.W. 325
• Parties: JENNINGS v. COOPER.
• Court: Missouri Court of Appeals

230 S.W. 325

JENNINGS v. COOPER.

No. 13709.

Kansas City Court of Appeals. Missouri.

May 2, 1921.

Appeal from Circuit Court, Holt County; A. D. Burnes, Judge.

"Not to be officially published."

Action by Lulu Jennings against Grace Cooper. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Hunt, Bailey & Hunt, of Rockport, for appellant.

L. D. Ramsay, of Rockport, for respondent.

TRIMBLE, P. J.

Herein the defendant is sued for alienating the affections of plaintiff's husband. The jury returned a verdict for $1,000 actual and $500 punitive damages, on which judgment was rendered, and defendant has appealed.

The case was submitted without a demurrer to the evidence or any instruction on the part of defendant asking for a directed verdict in her favor. In thus joining in a submission of the case to the jury without a demurrer, the defendant, in effect, concedes that plaintiff has a case sufficient to go to the jury. Boone County Lumber Co. v. Niedermeyer, 187 Mo. App. 180, 186, 173 S. W. 57. We may say, however, that had such a demurrer been offered, we would be compelled to hold that there was substantial evidence from which the jury could find a verdict for plaintiff. The failure of defendant to demur to the evidence answers the claim of defendant that the evidence was insufficient to make out a case. It also renders it unnecessary to state the facts of this unfortunate affair more than to say that defendant was the widow of Harmon G. Cooper, who died leaving a 280-acre farm on which they resided, so that defendant had her homestead and dower rights therein, while the fee descended to Cooper's seven children, two of whom were by a former marriage, and the other five — the oldest 14 and the youngest 3, all girls — were by his second wife, the defendant herein. The two stepchildren were grown and were living to themselves, and defendant had bought their interest in the farm. The widow married one May, but owing to his drinking and cruel treatment he was thrown into jail, and defendant afterward got a divorce from him, and had her former name of Cooper restored. During the existence of the marital relation between defendant and May, the latter hired James Jennings (plaintiff's husband) to work on the farm, and, after May's reign as husband and head of the household came to an inglorious end, defendant hired Jennings to continue his work on said farm and made him foreman over the hands on the place. It was while matters thus stood that the alleged alienation is said to have been accomplished.

It is asserted that plaintiff's instructions 1, 2, and 3 are erroneous. But the point is without merit. They are in the precise form of instructions 1, 2, and 3 for plaintiff in Modisett v. McPike, 74 Mo. 636, 639, which the Supreme Court in that case approved at pages 645 and 646. The element of wrongdoing is not left out of the instructions, since in each the issue was submitted whether the defendant "intentionally" persuaded or induced plaintiff's husband to separate from or remain apart from her. To "intentionally" separate a husband and wife, or to "intentionally" alienate the affections of one from the other, is a wrongful act, well known to be wrongful; and to intentionally do a wrongful act without just cause or excuse is malicious in legal contemplation. The three instructions were not inconsistent with each other and did not omit any necessary element of plaintiff's case.

Plaintiff's instruction No. 4 is as follows:

"Every material fact in issue in this cause must be determined by the jury by the light of all the evidence and circumstances in proof bearing on the same, and by the direction of the law as laid down by the court in the instructions given you. Under the testimony and instructions, such facts in controversy must be in favor of plaintiff, or in favor of defendant, according as the evidence preponderates in favor of one party or the other.

"The preponderance of the testimony means the greater weight of the evidence, without regard to the number of witnesses."

The above instruction does not tell the jury what are the material facts in issue, nor does it summarize the facts necessary to entitle plaintiff to recover or refer to the other instructions as containing such facts. An instruction should not leave the jury to determine for itself the material facts. Anderson v. McPike, 86 Mo. 293, 298, 299; Dalton v. Redemeyer, 154 Mo. App. 190, 197, 133 S. W. 133; Fugate v. Carter, 6 Mo. 267, 273. However, this instruction does not purport to tell the jury the basic facts of plaintiff's right to recover, and hence it may be that, as these were set out in the other instructions, the jury was not left to determine them for themselves, so that the instruction may not be defective in the particular respect just mentioned. The instruction, it is true, is not dealing directly with the ultimate right of plaintiff's recovery, but it is dealing with the question of how the jury shall decide the truth of the various material facts in dispute which will ultimately determine the question of recovery. In other words, it is, in reality, dealing with the subject of the burden of proof. And here is where it is, in our view, erroneous. It tells the jury that "such facts in controversy must be in favor of plaintiff, or in favor of defendant, according as the evidence preponderates in favor of one party or the other." But the evidence does not have to preponderate in favor of the defendant in order for the jury to find it to be as she claims. Vaughn v. Jackson, 216 S. W. 331, 332. The plaintiff has the burden of proof; but the effect of the instruction is to place the parties on the same footing in that regard. It is true in the case of Modisett v. McPike, 74 Mo. 636, 642, the trial court, of its own motion, gave an instruction (No. 2) similar to this one, but we do not understand that the Supreme Court passed upon its validity, the court's approval being limited to the "instructions given on the part of the plaintiff," and no attack seems to have been made on the instructions given by the court of its own motion. Besides, the trial court in that case supplemented the said instruction by immediately telling the jury that, "unless upon the whole evidence thus only weighed and considered there be, in the estimation of the...