Kadow v. Kadow

• Citation: 219 N.W. 275,195 Wis. 650
• Parties: KADOW v. KADOW ET AL.
• Decision Date: 08 May 1928
• Court: United States State Supreme Court of Wisconsin

195 Wis. 650

219 N.W. 275

KADOW

v.KADOW ET AL.

Supreme Court of Wisconsin.

May 8, 1928.

Appeal from a judgment of the Circuit Court for Manitowoc County; Michael Kirwan, Circuit Judge. Reversed.

Action by Malinda Kadow against Wenzel C. Kadow and Mary L. Kadow, begun March 24, 1927, to recover damages for alienation of the affections of plaintiff's husband by the defendants, who were the parents of the husband. From a judgment for the plaintiff, entered September 10, 1927, the defendants appealed.

Owen and Crownhart, JJ., dissenting.E. S. Schmitz, of Manitowoc, and Schmitz, Wild & Gross, of Milwaukee, for appellants.

Oliver L. O'Boyle, of Milwaukee, for respondent.

STEVENS, J.

The case presents a real tragedy. A son of respected parents married a woman whose character is above reproach. The wife and the parents have abundantly demonstrated their unselfish and devoted love of this man, whose uncontrolled appetite for liquor has imposed a heavy burden of sorrow and of suffering upon both the plaintiff and these defendants.

[1] The testimony shows that these parents did not welcome plaintiff as a daughter-in-law. She was a divorced woman with a child, and was seven years older than their son. She had gone with him to Waukegan, Ill., to be married, without their knowledge and consent. They had hoped that he would marry another girl. As parents they had the right to object to this marriage, and to build other castles in the air for their son. They had the right to refuse to make the plaintiff a member of their family. They had the right to advise their son to leave his wife, if they honestly believed that conditions were “such as to demand separation, provided they acted in good faith and have substantial reasons for believing that the advice given is proper.” Baird v. Carle, 157 Wis. 565, 567, 147 N. W. 834.

[2] But the record is barren of any competent evidence whatever that these parents advised their son to leave the plaintiff. The most that can be said is that there is proof of circumstances which plaintiff contends is sufficient to show that the parents did advise separation. This proof consists of such circumstances as the failure of the parents to give the plaintiff a Christmas present, or to invite her to meals in their home, or to ask her to ride with them, and such facts as that on one occasion the mother hung up the receiver when the plaintiff was talking to her over the phone, and that at another time the mother did not answer the door bell when the plaintiff called at the home of the parents.

Opposed to these circumstances upon which the plaintiff relies is the undisputed fact that these parents time and again took their son to the plaintiff's home, when she asked their assistance because he was incapacitated by the use of liquor; that the father told the son that he ought to live with his wife, and that, following that advice, the son did go to the plaintiff's home and live with her as husband and wife for more than a year. The plaintiff testified that the father told her that she and the son were married, and that they must make the best of things.

[3] One spouse, who seeks to recover damages of the parents of the other spouse for the alienation of the affections of that other spouse, has the burden of establishing two facts: (1) That the acts and advice of the parents were the controlling cause of the separation and of the loss of affections. (2) That such acts were the result of malice or bad intent on the part of the parents toward the spouse claiming damages. McLery v. McLery, 186 Wis. 137, 142, 202 N. W. 156.

[4] “The relations of a parent and child in their moral aspects, and legal as well, begin at the inception of life, and do not wholly end until life ends, and those relations carry with them certain duties and privileges as to advice and protection and helpfulness in case of need, the observance of which is so natural and so laudable and so essential to the family happiness and welfare that acts ostensibly promotive thereof are not to be lightly held to have had a wicked purpose for their mainspring. Acts done by a stranger might well be regarded as malicious, while similar acts done by the parents would not give rise to a well-grounded suspicion of bad intentions. We fully recognize such to be the case and that the true test to be applied to the evidence in this class of cases is: Were the defendants in what they did actuated with reasonable parental regard for their child, or were they actuated by unreasonable ill will towards the husband or the wife, as the case may be? If the former, and they yet, from the standpoint of a better or the best judgment, were wrong, excusably mistaking the true situation, the resulting injury is damnum absque injuria.” Jones v. Monson, 137 Wis. 478, 486, 487, 119 N. W. 179, 183 (129 Am. St. Rep. 1082). “This rule is not only humane, but a contrary one would be almost intolerable.” Baird v. Carle, 157 Wis. 565, 567, 147 N. W. 834, 835.

[5][6] The law presumes that these parents did what they did for the purpose of promoting the welfare of their son and not to maliciously wrong this plaintiff. McLery v. McLery, 186 Wis. 137, 142, 202 N. W. 156. The proof does not overcome that presumption in this case. It is not sufficient to assert that the record discloses no other reasonable cause for the separation. In order to recover, plaintiff must go farther and establish that the acts of the parents were the controlling cause of the separation and that these parents acted “maliciously and in bad faith.” Baird v. Carle, 157 Wis. 565, 567, 147 N. W. 834, 835.

It appears very plainly that the reason for the unfortunate situation which has caused all the parties to this action to suffer in a way that cannot be measured by dollars and cents is that the chief actor in this tragedy has been induced to do what he has done by the rash impulses that have controlled him at times...