Kuhn v. Cooper

• Decision Date: 31 May 1955
• Docket Number: No. 10694,10694
• Citation: 141 W.Va. 33,87 S.E.2d 531
• Court: West Virginia Supreme Court
• Parties: Virginia Hall KUHN, v. Myrtle COOPER.

Page 531

87 S.E.2d 531

141 W.Va. 33

Virginia Hall KUHN, v. Myrtle COOPER.

No. 10694.

Supreme Court of Appeals of West Virginia.

Submitted April 26, 1955.

Decided May 31, 1955.

Syllabus by the Court.

1. A case in which the verdict is supported by the evidence.

2. Prior misconduct of a plaintiff in an action for alienation of affections may be admitted in mitigation of damages if not too remote in time and such misconduct caused or tended to cause plaintiff's spouse to deny consortium to plaintiff.

3. Witnesses who have testified falsely to material facts may retract such testimony and the retraction may be communicated to the jury. But, the parties litigant should be accorded the right to cross-examine such witnesses.

W. Hayes Pettry, Charleston, Ned H. Ragland, Beckley, for plaintiff in error.

Pettigrew, Samms & Pettigrew, Charleston, for defendant in error.

LOVINS, President.

This is an action of trespass on the case to recover damages for claimed alienation of affections of plaintiff's husband. The action was brought by Virginia Hall Kuhn, hereinafter designated as plaintiff, against Myrtle Cooper, hereinafter referred to as defendant, in the Circuit Court of Kanawha County. A jury trial resulted in a verdict for the plaintiff for $12,500. The trial court, having overruled a motion to set aside the verdict, entered judgment for the amount of the verdict. The defendant prosecutes this writ of error.

The plaintiff and defendant were married women and prior to the alleged alienation lived with their respective husbands, the plaintiff at St. Albans and the defendant at or near Summersville, West Virginia. The defendant became acquainted with Clayburn C. Kuhn in March, 1952. At that time the plaintiff and her husband had three children. There is evidence showing that the plaintiff and defendant at the time of the trial had separated from their husbands.

It seems that after the plaintiff's husband and the defendant met, they associated together. There are several episodes detailed in the record as well as purchases of certain articles of merchandise by the defendant, afterwards used by the plaintiff's husband, and also given to the plaintiff's husband and daughter which substantiates this assumption. Among other things is a watch, a clock, a shot gun, a toilet kit or case, luggage, a ring, shoes and a jacket or vest. It is not clearly shown that all of these articles were given to the plaintiff's husband. The defendant denies giving him the shot gun, the ring, the clock, watch, watch band and luggage. Defendant admits that being short of ready cash, she had used her credit to purchase various articles and then turned them over to the plaintiff's husband, who would thereafter pay her cash for such articles. But she denies in the main any gifts to plaintiff's husband.

The plaintiff's husband and the defendant were named in two warrants charging them with adultery. On the trial on one of such warrants, they were acquitted. On the other, they were convicted and appealed the same to the Intermediate Court of Kanawha County where the charge was dismissed.

There is proof that the defendant and the plaintiff's husband went to Washington, Virginia, for the purpose of purchasing an automobile, the plaintiff having theretofore driven her husband's car to that state and had an accident on such trip. The cash payment required in such purchase in the amount of $450.00 was paid by the defendant and the title to the automobile was taken in her name, but later transferred to plaintiff's husband. There is proof showing that the plaintiff and her children were staying at her father's home near Washington, Virginia, at the time the automobile was purchased. After the trial on one of the charges of adultery, the defendant drove her automobile to St. Albans, West Virginia, parked at or near the residence of the plaintiff. The plaintiff was forbidden to go into her home by her husband and the defendant remained there with the plaintiff's husband while plaintiff was forced to spend the remainder of the night with her next door neighbor. The plaintiff so testified and her testimony is corroborated to a certain extent by the person who lives next door to plaintiff's residence. On one occasion the defendant and plaintiff's husband were arrested at defendant's apartment on Truslow Street in the City of Charleston. True, the defendant denies that anything improper occurred there. The defendant, when answering a knock at her door, after a short delay, came to the door clothed in her night clothes with a houserobe on. The plaintiff's husband was in the kitchen of the apartment ostensibly watching for persons who were engaged in pilfering or damaging the husband's and defendant's automobile. The defendant cooked morning meals and packed lunches for the plaintiff's husband on numerous occasions. It seems that the husband of the plaintiff was accustomed to visiting next door at the home of friends of the defendant. On the occasion when the defendant and plaintiff's husband were arrested, such friends testified that the plaintiff's husband had only been in defendant's apartment for about five minutes.

Relative to the trip to Washington, Virginia, the defendant introduced two witnesses who are husband and wife and who testified distinctly that they accompanied the defendant and the husband of the plaintiff to Washington, Virginia. According to these witnesses, as well as the defendant, the plaintiff's husband left them and the defendant at a garage where the automobile was purchased. The defendant and these two witnesses started on the return trip to Charleston immediately.

It is proper at this point to say that after the taking of evidence had ended, these two witnesses testified in chambers in the presence of the trial judge and counsel for the parties that their testimony as to accompanying the defendant and the plaintiff's husband to Washington, Virginia, was false. The trial court permitted such retraction to be read by the jury and also permitted cross examination by the defendant's counsel. It is to be noted that the defendant's testimony relative to the trip to Virginia coincides with the testimony of the witnesses who retracted their statements.

There is other testimony showing that the plaintiff's husband called on the defendant on two or more occasions at her place of business near Summersville, West Virginia. One witness testified that on one of these occasions, the plaintiff's husband hugged and kissed the defendant.

The defendant on her part denies any wrongdoing or intent to alienate the affection of plaintiff's husband and makes explanation of the same as above noted relative to the purchase of merchandise and the automobile in that she says that plaintiff's husband had no credit. She also denies that plaintiff's husband caressed her at Summersville. She testified that she has no designs on the plaintiff's husband or intent to alienate his affections. She explains her association with the plaintiff's husband by saying that he belonged to a secret order or lodge and that plaintiff's husband was also a member of a secret order or lodge allied or associated with one the defendant belonged to and that their association began by reason of a custom in such secret order or lodge of selecting a 'secret pal' which arrangement lasted for one year.

Concerning the trip to Virginia, the plaintiff offered a photostatic copy of a registration card at a hotel in Front Royal, Virginia. This photostatic copy was not admitted in evidence, but only identified. Likewise, a photostatic copy of a registration card in a motel near the City of Charleston was identified, but not admitted in evidence. These documents were rejected because of the failure to show that the defendant was connected with such registrations.

The defendant attempted to introduce proof to show that the plaintiff and her husband were married in haste after the divorce of the husband, ending a prior marriage, became effective and offered a letter to show that the plaintiff and her husband, prior to their marriage, associated together, although the husband of the plaintiff was then married to a woman other than the plaintiff.

The defendant's husband testified in behalf of the plaintiff. He says that he found a fountain pen in the home of the plaintiff with his initials thereon. He also testified that the plaintiff admitted to him in buying certain articles of merchandise for plaintiff's husband. In one particular, the defendant's husband says that the defendant told him she had bought a shot gun for her 'honey', for his use to shoot defendant's husband.

The defendant on this writ of error makes numerous assignments of error, many of which are immaterial and do not call for, or merit discussion, being somewhat frivolous.

The errors may be clasified as follows: (a) the admission of improper evidence; (b) the rejection of proper evidence; (c) in permitting the retraction of testimony made by the two witnesses adduced by the defendant to be read to the jury; (d) in refusing to permit the introduction of testimony showing that the plaintiff and her husband associated together prior to their marriage and while the plaintiff's husband was married to another person; (e) in failing to receive and record a finding by the jury allocating damages as compensatory and punitive; (f) in refusing to direct a mistrial because of retractions made by the two witnesses above mentioned; (g) in refusing to give proper instructions and the giving of improper instructions over the objection of the defendant; (h) in refusing to set aside the verdict; (i) in overruling the motion for a new trial.

This action, like many others, involving domestic relations and their break-up or severance, discloses much conflict in the testimony adduced by the parties. As stated above, the assignments of error are somewhat general and immaterial, and we think the following discussion will...