Kilgore v. Kilgore

• Decision Date: 22 September 1944
• Citation: 154 Fla. 841,19 So.2d 305
• Parties: KILGORE v. KILGORE.
• Court: Florida Supreme Court

19 So.2d 305

154 Fla. 841

KILGORE v. KILGORE.

Florida Supreme Court

September 22, 1944

Rehearing Denied Oct. 17, 1944.

Appeal from Circuit Court, Pinellas County; John U Bird, judge.

Erle B Askew, of St. Petersburg, McMullen, McMullen & Pogue and Harry L. Thompson, all of Clearwater, S. Whitehurst's Sons, of Brooksville, Clair A. Davis and Richard T. Earle both of St. Petersburg, for appellant.

Anna A. Krivitsky and Howard E. Joseph, both of Tampa, Walter G. Ramseur, of St. Petersburg, and J. Lewis Hall, of Tallahassee, for appellee.

ADAMS, Justice.

Elva Kilgore sued her husband's father, Barnard Kilgore, for the alienation of her husband's affections. The jury awarded a verdict of $20,000. On motion for a new trial, the trial Judge held that the evidence sustained the verdict and commented that for him to disturb the verdict would amount to a usurpation of authority.

Four principal questions are presented by this appeal: (1) The sufficiency of the testimony; (2) admission into evidence of a letter, over defendant's objection, dated September 15, 1922; (3) the admissibility of statements to plaintiff by her husband; (4) excessiveness of the verdict.

Actions of this character are not altogether new in our State. Brandt v. Brandt, 138 Fla. 243, 189 So. 275; Clark v. Orr, 127 Fla. 411, 173 So. 155. One of the leading cases in this country is that of Wallace v. Wallace, 85 Mont. 492, 279 P. 374, 375, 66 A.L.R. 587. This case also treats the several questions raised on this appeal. To sustain her case the plaintiff is required to prove: 1. The wrongful act of the defendant; 2. the loss of affection; 3. the loss of affection resulting from defendant's wrongful act. In a suit against a parent for the loss of affection the first element, namely, the wrongful act, is not proven until malice is shown. Moir v. Moir, 181 Iowa 1005, 165 N.W. 221; Meek v. Meek, 118 Kan. 106, 233 P. 1032; Kadow v. Kadow, 195 Wis. 650, 219 N.W. 275; Birchfield v. Birchfield, 29 N.M. 19, 217 P. 616. The parent is always justified in interesting himself in the children's welfare, even after marriage, but in so doing he must act upon good cause and be actuated by good motive, otherwise his conduct may become, in law, wrongful and malicious. Malice, as here used, does not necessarily spring from a mean or hateful mind or revengeful disposition. It implies conduct arising without justification in law or without due regard for the rights of the other spouse. Proof of such malice need not be by direct evidence. So far as direct evidence is concerned perhaps no one except the alienated spouse can actually say that he was influenced by the defendant's conduct and under the circumstances of the case he would hardly be expected to do so. And, too, the parental tie is so strong that the alienated spouse may be wholly unaware that his parent is actually weaning him away from his wife. The wrong may be perpetrated over a time and in such fashion that it would be utterly impossible to fix a time, place, deed or word to establish its proof by direct evidence. Frequently evidence of the wrong does not appear until the deed has been accomplished. It is for the jury to say from all the circumstances whether malice in law has been proven.

The plaintiff was married to defendant's son, Chester Kilgore, in 1922. Chester was employed by his father. When they had been married about two weeks the young couple went to Clearwater, some distance from Frostproof, where he was employed. After two days' visit defendant directed that Chester return to his work and leave plaintiff in Clearwater, saying, 'Elva can't go with you; she interferes with your work.' In this fashion the young couple started out and much of their life thereafter proceeded in somewhat similar manner until December, 1938, when Chester, after meeting with his father, returned and said in substance to plaintiff, 'Dad has fired me * * * Elva, you and I are finished. * * * That is what Dad wanted. * * * I am going down to the grove where I can think.' Thereafter the parties did not live together. Chester went away and communicated with his father. Plaintiff inquired of defendant of Chester's whereabouts and welfare and was assured by defendant that he was all right and doing nicely without her. Defendant only allowed plaintiff to communicate with Chester through his (defendant's) attorney. During the years Chester worked mostly for his father, there were several separations and several times Chester became involved with the law and became a fugitive. Once Chester was away and became ill with tuberculosis and defendant gave plaintiff transportation and requested that she go and care for him. She nursed him back to health. Thereafter, Chester injured himself severely and plaintiff continued to care for him. She said Chester was kind and devoted to her and they were happy together except when defendant was present.

Plaintiff admits defendant provided in a material way for wants of her and Chester but says that in return he completely dominated Chester's will. Defendant was no doubt actuated by what he thought to be a good motive and for the best interest of the parties, yet in his zeal to exercise his own will he purported to set himself up as the judge as to whether the marriage relation should continue. Shortly after the marriage, defendant advised a divorce because plaintiff was ill, or claimed to be, and for that reason, in his opinion, she would not make a good wife. This same advice was again offered after the final separation and while Chester was absent. At the time defendant persisted in taking plaintiff to his attorney for the purpose of securing a divorce. Even though defendant was actuated in giving such advice by what he thought to be good motive, his advice was in such total disregard of the marital vows and the general concept of right we think the jury might well have concluded that his motive was unlawful. A parent who presumes to terminate the marital status of his child does so at his peril and should proceed with caution and reserve.

The evidence is voluminous and we shall not attempt to recite it in detail. For the purpose of disposing of this question we view it in its most favorable light to the plaintiff. The jury was authorized in believing her if they saw fit. She said that defendant, a rich man, threatened to disinherit Chester unless he divorced her and shortly thereafter Chester went away for a long period of time and that she was unable to locate him and only learned of his welfare through defendant. Plaintiff said defendant never approved of her and at all times blamed her for Chester's faults, which, admittedly, were numerous but existed prior to meeting plaintiff.

It appears by the record that the trial court submitted to the jury, under appropriate instructions, the issues made by the many allegations of Count No. 10 of the declaration and the pleas of the defendant directed thereto. One of the allegations of Count No. 10, in effect, is that Elva Cole and Chester Kilgore, son of Barnard Kilgore, married during February, 1922, and that they lived together as husband and wife until sometime in the latter part of 1938, with the exception of certain periods during their marital life when the plaintiff's said husband would desert her and would in turn finally come home and resume with her their marital relationship; and that during all of said period of such married relationship and more particularly immediately prior to the last desertion by the said Chester W. Kilgore about two years ago, the defendant contriving, wilfully, knowingly, wrongfully, unjustly, wickedly and maliciously to injure, prejudice and aggrieve the plaintiff in her enjoyment of the companionship, aid, society, comfort, and protection derived from her aforesaid husband, within the County of Pinellas, State of Florida, and divers other places, did wilfully destroy and alienate the affections of her husband, Chester W. Kilgore.

Admitted into evidence for the consideration of the jury, and over proper objections seasonably made by counsel for defendant below, was a letter dated September 15, 1922, allegedly written by the defendant, which is viz.:

'Clearwater, Florida, Sept. 15, 22

Hello Elva:

Your telegram to Elsie arrived in answer to hers that went three days before and not until a message from somewhere up there arrived here instructing the Sheriff to hold him for the arrival of the warrant that your very amiable relatives seem to have been responsible for the issue of.

He is now a fugitive from justice, and if you get your just deserts you would never have the opportunity of looking at him again.

Don't think that I am condoling or overlooking his faults at all, but you knew that he has a very weak point and when he was trying hard to square himself, and was making fair progress, you must break it all up, even tho'h the means employed was as low and mean as he or anybody else could employ. And despite all of this his whole tho't is of you and how you are getting along and thinking that your amiable? people will try to alienate you from him----

If you could have seen him when he got here I think it would have made an impression that would have left your common sense where it could be of use.

I told him it would not be best for you to come back here until things have made a decided change, in fact, if I am not convinced beyond doubt, that you as well as he have absolutely changed your ideas of propriety, I shall favor his permanent abode in South America.

I shall not think much of your reform or influence unless you succeed in getting your influential relatives to have those criminal warrants for him cancelled, and when I am convinced that nothing even a sick wife and her taunting relatives...