Knapp v. Knapp

• Decision Date: 29 February 1916
• Docket Number: No. 16985.,16985.
• Citation: 183 S.W. 576
• Parties: KNAPP v. KNAPP et al.
• Court: Missouri Supreme Court

183 S.W. 576

KNAPP v. KNAPP et al.

No. 16985.

Supreme Court of Missouri. Division No. 1.

February 29, 1916.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Elizabeth Knapp against Anna Knapp and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Henry B. Davis, Charles Erd, Alroy S. Phillips, and Carlisle Durfee, all of St. Louis, for appellants. George E. Mix, of St. Louis, for respondent.

BLAIR, J.

Respondent instituted this action in the circuit court of the city of St. Louis to recover damages for the alienation of her husband's affections. Appellants are the husband's mother and sister. The jury assessed respondent's damages at $17,000. The trial court ruled the amount was excessive, and respondent remitted $7,000. A judgment for $10,000 was entered, and this appeal followed.

I. Counsel argue there is no substantial evidence tending to support the verdict. After a painstaking search through this voluminous record, we have been able to find some substantial evidence tending to show that defendants were opposed to the marriage of their son and brother to respondent; that they, being unable to prevent its consummation, determined, without the semblance of a reason arising out of the life and conduct of respondent, to separate the pair; that the mother, abetted and aided by her daughter and codefendant, urged the son and brother to leave his wife, threatening to disinherit him if he did not leave her, and promising to support and take care of him, and, inferentially at least, permit him, in due time, to share in her estate if he did so; that appellants constantly insisted upon the husband leaving his wife, and finally gave him and his wife notice to vacate the flat they were occupying, and which was owned by appellant Anna, and upon their removal therefrom took the husband into their home, where he has since resided; respondent being compelled to live with her relatives. The two have so lived at all times since. The suit was brought nearly six months after the separation.

It is true respondent's own testimony shows the husband was an habitual drunkard, had been so from the time of the marriage, was out of employment for 18 months prior to the separation, paid his mother no rent, and furnished plaintiff practically nothing during that period, was drunk nearly all that time and always quarrelsome when drunk, was violent on some occasions, once, at least, putting her in fear of her life, and disturbed his mother's other tenants to the extent that some of them left, and others threatened to leave. She also testified she rejected the mother's offer to send the husband to a cure for inebriates, that the mother and daughter were generally kind, and that the things to which she objected happened when her husband was drunk and the mother was present. Much of her other testimony, as contended, is clearly inconsequential, consisting of childish distortions of innocent remarks and actions. It is also true that most of the witnesses called by respondent either admitted or clearly displayed marked ill will toward appellants, some having been tenants who had not paid rent until sued, if at all. It is also true the bulk of the evidence seems to indicate respondent's trouble is due to her having married a drunken and irresponsible man, and that, his conduct having made his maintenance of a home impossible, the home fell on that account, and the mother, of course, gave him shelter. This, however, simply made the case one for the jury on the conflicting evidence, and we have no power to interfere with their conclusion as to its weight.

II. Instructions 1 and 2 given for plaintiff are rescripts of Nos. 3 and 4 given in Nichols v. Nichols, 147 Mo. loc. cit. 393, 402, 48 S. W. 948, 951, concerning which the court in that case said they "submitted the main issue in unobjectionable terms." In the opinion of the writer the second of these could have been phrased so as more clearly to require the finding of the requisite malice and co-operation.

III. Instructions 3, 4, and 5 given for plaintiff are erroneous. The principal defects they exhibit are that they omit to require findings that: (1) Appellants co-operated; and (2) were actuated by malice. Plaintiff sought and secured a joint judgment against defendants. Co-operation of tortfeasors is essential to support a joint judgment against them for a willful and intentional tort, like that forming the basis of the charge in this case. Barton v. Barton, 119 Mo. App. 507, 94 S. W. 574. As to the second error mentioned, respondent's counsel does not combat the...