Krenkle v. Selleck

• Decision Date: 07 July 1928
• Docket Number: 28,203
• Citation: 268 P. 807,126 Kan. 531
• Parties: HENRY C. KRENKLE, Appellant, v. ARTHUR SELLECK et al., Appellees
• Court: Kansas Supreme Court

268 P. 807

126 Kan. 531

HENRY C. KRENKLE, Appellant, v. ARTHUR SELLECK et al., Appellees

No. 28,203

Supreme Court of Kansas

July 7, 1928

Decided July, 1928

Appeal from Mitchell district court; WILLIAM R. MITCHELL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

HUSBAND AND WIFE--Alienation of Affections by Parents of Spouse--Evidence. In an action to recover for the alienation of the affections of his wife brought against the father and mother of his wife, the court sustained a demurrer to plaintiff's evidence, and upon appeal it is held that his evidence was insufficient to show malice or other improper motives of the defendants or such interference as established a liability against them, and that there was no error in the decision sustaining the defendants' demurrer.

C. L Kagey, L. M. Kagey, R. H. Noah and R. L. Hamilton, all of Beloit, for the appellant.

R. M. Pickler, of Topeka, F. A. Lutz and A. E. Jordan, both of Beloit, for the appellees.

OPINION

JOHNSTON, C. J.:

Henry C. Krenkle brought this action against Arthur Selleck and his wife, Julia Selleck, to recover damages for alienating the affections of his former wife, Eva Krenkle. At the trial plaintiff offered his evidence, and when he had rested the court sustained a demurrer to his evidence and gave judgment for defendants. He appeals from the ruling and judgment.

Did the evidence produced by plaintiff tend to establish a right of action against the defendants for the alienation of the affections of his former wife? is the only question presented on this appeal. It appears that the plaintiff and Eva Mears were married October 9, 1923. Each had been married before, and each had children by the former marriage. He had three children who were living apart from him, while Mrs. Krenkle had two children by a former marriage, namely, Paul Mears, aged sixteen years, and Ruth Mears, aged fourteen. He owned a tract of land which was incumbered, and she was living on an improved farm of 240 acres that had descended to her, one-half of which was owned by her and the remaining one-half by her children, Paul and Ruth. Before her marriage he presented to her a prenuptial agreement which contained among other things stipulations to the effect that they should occupy and operate her farm and would divide the products upon a certain basis. It was stipulated in the agreement that each should waive the right of inheritance in the property of the other, and that the property of each should ultimately pass to his or her own children. She was not satisfied with the agreement because it did not contain provisions relating to her son, Paul, who wished to gain a college education. He told her he would write such a provision in the agreement, if she would word it, but it was signed without alteration.

The evidence tended to show that shortly after the marriage she complained that the contract was unfair as to Paul and wanted to know where the money was coming from to send him to college, and he testified that she kept on nagging him day after day for money to educate Paul. During the months following the marriage there were disagreements, and she ultimately applied for a divorce. At one time in September 1925, she telephoned to her parents, the defendants in the case, to come to her home; and they went there and found plaintiff and his wife discussing their differences in a heated manner, and after listening to their discussion for about two hours, Mr. Selleck made the remark, "If you cannot get along any better than this, the only thing you can do is to be divorced." There was some talk of their entering into a new agreement, and the defendant, Arthur Selleck, remarked that another agreement would not do any good; if you cannot live together with the agreement you have, you had better be divorced. No other representations were made by defendants or any interference by them shown. Afterwards plaintiff and his wife with the defendants went to the office of the probate judge, with a view, it seems, of obtaining a divorce, and were told by the judge that he had no authority to grant one. They then called on a lawyer and discussed their troubles with him, and the defendants left and went to their own home. Shortly afterwards a divorce was granted to Mrs. Krenkle on the ground of gross neglect of duty and extreme cruelty. The plaintiff entered his voluntary appearance in the suit and did not contest the...