Lankford v. Tombari, 31026.
| Decision Date | 13 January 1950 |
| Docket Number | 31026. |
| Citation | 213 P.2d 627,35 Wn.2d 412 |
| Parties | LANKFORD v. TOMBARI. |
| Court | Washington Supreme Court |
Department 2
Roy Lankford sued William Tombari for alienation of affection and for criminal conversation.
A judgment for plaintiff for $15,000 was entered by the Superior Court, Spokane County, Carl C. Quackenbush, J., and the defendant appealed.
The Supreme Court, Mallery, J., held that evidence on issues of intention and causation as to both causes was sufficient to sustain denial of motion for nonsuit, that trial court did not err in giving or refusing of instructions, and that none of the matters set forth in defendant's motion for new trial entitled him to a new trial.
Judgment affirmed.
Verdict of $15,000 in action for alienation of affection and for criminal conversation was not so excessive as unmistakably to indicate passion and prejudice, in light of evidence.
Edge, Davenport & Edge, Spokane, for appellant.
Frederick A. Clanton, Spokane, for respondent.
This is an appeal from a $15,000 judgment for plaintiff in a suit based on two causes of action, one for alienation of affection, the other for criminal conversation.
Respondent married his wife Charlotte in 1938. She bore him two children and was a good wife was mother. In May, 1944, he moved his family to a home on Marshall street in Spokane and the following month entered the navy.
In February, 1945 she moved to a house on Mission street where she and the children lived with her sister's mother-in-law and her sister's two children. The Mission street residence was fifty feet from appellant's pharmacy.
She became acquainted with appellant in April 1945. In May, respondent asked her to join him in San Francisco when he anticipated his final leave prior to embarkation for overseas. She refused to join him. Thereafter her infrequent letters evidenced less and less affection for him. June 10, 1945 Charlotte became a clerk in appellant's pharmacy. Sometimes she worked from 9:00 a.m until 6:00 p.m.; other times she work from 1:00 p.m. until midnight, when the pharmacy closed.
She permitted appellant to take her home two or three nights a week as late as 3:00 a.m., permitted him to came into her home at that hour and permitted him to use the family car.
Respondent returned from overseas in February, 1946, and moved his family back to the Marshall street residence. He discovered that she was not pleased by his return but they continued to live together and, in April 1946, moved to a home on Farr Road, four and a half miles from the pharmacy.
Her indifferent attitude toward him grew into open hostility during the year they lived on Farr Road. She denied him his marital prerogatives, was indifferent in performing her duties as mother and housekeeper and repeatedly told him that if he did not like her behaviour he could take the children and leave. When, eventually, he accused her of consorting with another man, she admitted it but would not reveal his identity.
After his return from the service, respondent worked long hours establishing his new business, a service station. He seldom returned home prior to 9:00 p.m., a fact known to appellant.
During the year that they lived on Farr Road, she and appellant established a pattern of behaviour that attracted the attention of neighbors and of the young women who cared for the children. They would arrive at the Lankford home shortly after 5:00 p.m. two or three times a week in a red pick-up truck driven by appellant. They would enter the house together, always leaving the children outside, and appellant would remain an hour or more. Two or three times a week appellant would have lunch with her at the Lankford residence. On more than one occasion at the Lankford residence and at the pharmacy she was observed to permit appellant to take improper liberties with her person. She was also observed to have thrown her arms around appellant at the pharmacy. On one occasion she confided to the young lady that cared for her children that she loved appellant.
In April 1947, at her insistence and with appellant's help respondent removed the family to the Marshall street residence once more. They lived together there until October 21, 1947 and the behaviour of the parties continued unchanged.
After she commenced to work for appellant, she was friendly with other young men who came to the pharmacy which was a neighborhood gathering place. Several of appellant's employees or friends, frequently escorted her home. One of them claimed to have had improper relations with her during this period. She evidenced no lasting affection for any of these others but consistently and affectionately consorted daily with appellant from the middle of 1944 until the so-called October 21 episode in 1947.
This occurred when respondent unexpectedly returned to his Marshall street residence at 2:00 p.m. and found Charlotte and appellant alone together in the house under circumstances clearly indicating adultery. Within a few moments respondent packed his effects and moved out, taking the children with him. The familiar red pick-up truck was parked in front of the Marshall street residence all night, October 21-22, 1947.
Subsequently respondent obtained a divorce and custody of the children. The divorce complaint allegations are brought into issue here for the reason that they alleged her relations with other men. The jury was entitled to find that this was not an admission by respondent that appellant was not the person who had alienated his wife's affections since it appears that, at the time the complaint was drafted, respondent was uninformed of appellant's previous relationship with his wife and became informed of it only when it became necessary in preparing for trial to discover all the evidence obtainable. When the prior relationship was revealed in all its sordid detail respondent commenced this action against appellant.
In appellant's challange to the sufficiency of the evidence he contends that an element of the tort of alienation of a wife's affection is a purpose to accomplish diminution of her affection for her husband. This may be granted.
Alienation of affections is an intentional tort. Harper on Torts, Indianapolis, The Bobbs-Merrill Co., 1933, §§ 256, 260; Prosser on Torts, St. Paul, West Publishing Co., 1941, § 683; 42 C.J.S., Husband & Wife, § 662, p. 317; 27 Am.Jur. 129, Husband & Wife, § 527. But the actor's purpose does not have to be proved independently of the acts which caused the alienation of affection. Seductive acts which alienate the affection of another's wife infer the actor's purpose because, in the eyes of the law, a man intends the natural and probable consequences of his seductive acts. Ecklund v. Hackett, 106 Wash. 287, 289-291, 179 P. 803; Grilnberger v. Brotherton, 173 Wash. 292, 293, 22 P.2d 983. See also Martin v. Ball, 30 Ga.App. 729, 119 S.E. 222, and Prosser, op.cit., § 101(a), p. 922, n. 68.
The evidence as set out above is sufficient on the issues of intention and causation as to both causes to sustain a denial of the motion for non-suit. McBeath v. Northern Pacific Ry. Co., Wash., 204 P.2d 248, 249. See also Regenvetter v. Ball, 131 Wash. 155, 159, 229 P. 321, and the discussion on this question as it relates to adultery in Kenworthy v. Richmond, 86 Wash. 127, 130-32, 149 P. 348.
Appellant contends that the two causes of action were improperly joined and that respondent should have been required to elect between them on the ground that he was seeking a double recovery for a single alleged wrong.
An action for alienation of a wife's affection may be joined with an action for criminal conversation with the same wife when they do not require different places of trial, when they are separately stated and when the parties are the same. Rem.Rev.Stat. § 296, P.P.C. § 86-25. This is because the gist of alienation of affection is interference with a wife's mental attitude to her husband's personal detriment while the gist of criminal conversation is adultery which defiles the husband's interest in his marital prerogatives and beclouds the legitimacy of his children to his personal detriment. 27 Am.Jur. 123-128, 136-137, Husband & Wife, §§ 522-525, 536, 42 C.J.S., Husband & Wife, §§ 660, 665, 668, pages 315, 318, 321; Prosser, op. cit., § 101; Harper, op. cit., §§ 255, 256 and 258; 3 Restatement of Torts, § 683(c) and (r). See also Lippman, The Breakdown of Consortium, 1930, 30 Col.L.Rev. 651, 654-660.
On the issue of damages appellant contends that the trial court erred in refusing to give his requested instruction numbered nine which stated:
The requested instruction is not the law. It was not error to refuse it.
We will not consider the fifth assignment of error since appellant did not comply with Rule of Court 16(5) requiring him to set out in full the instructions in question.
Appellant challenges the giving of instructions three and six, both of which apply to alienation of affections. Number three correctly instructed the jury as to all...
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