Larsen v. Larsen
| Decision Date | 07 May 1927 |
| Docket Number | 24799 |
| Citation | 213 N.W. 971,115 Neb. 601 |
| Parties | META LARSEN, APPELLEE, v. NICK LARSEN ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Fillmore county: WILLIAM J. MOSS JUDGE. Reversed.
REVERSED.
Albert S. Johnston, Claude S. Wilson and Waring & Waring, for appellants.
Sloans Keenan & Corbitt, contra.
Heard before GOSS, C. J., ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.
This is an action commenced in the district court for Fillmore county by appellee, Meta Larsen, hereinafter called plaintiff against Nick Larsen, Anna Larsen, and Ida Larsen, father-in-law, mother-in-law, and sister-in-law respectively of plaintiff, appellants, and hereinafter called defendants, seeking to recover damages from such respective defendants for alienating the affections of plaintiff's husband, and depriving her of his support, maintenance, comfort, and companionship. After the issues were duly joined, the case was tried to a jury, and verdict returned and judgment entered for plaintiff against the defendants, and each thereof: to reverse which such defendants respectively appeal. The petition also charged the defendants with having wrongfully and maliciously formed a conspiracy seeking to deprive the plaintiff of the above indicated rights enuring to her by reason of such marital relations; and in furtherance of such conspiracy charged the defendants with the wrongful commission of sundry other acts affirmatively pleaded, leading up to and forming the basis of plaintiff's alleged right of recovery.
The defendants answered separately, and such answers were identical in terms. Each thereof, in substance, was as follows: Admits the marriage, defendants' relationship with Charles Larsen, the husband, and that no objections were interposed by defendants to such marriage; admits that as such father, mother, or sister, as the case may be, they at various times have advised with such Charles Larsen in reference to his personal affairs, when solicited by him to do so, but in good faith and without malice, and with a view solely to his welfare as such relative; further admits that plaintiff commenced an action for separate maintenance against her husband alleging as cause his breach of marital duties, of which no act of defendants was the controlling cause, and that plaintiff voluntarily dismissed such application; and for further answer, and as an independent paragraph thereof, defendants interposed a general denial to each and every allegation in plaintiff's petition "not hereinbefore expressly admitted or alleged."
To these respective answers plaintiff interposed by way of reply a general denial.
The errors relied on for reversal are as indicated by the motion for a new trial, the briefs filed, and oral argument had, and include the usual charge that the verdict is not supported by the evidence and is against the weight thereof; also exceptions to every instruction given by the court, and the refusal of the court to give numerous instructions asked by the defendants; also errors of law occurring at the trial.
We will first consider the challenge to the instructions, so far as we deem it necessary to a proper disposition thereof. Instruction No. 1, complained of, contains an extended synopsis of the facts set forth in the petition; also that part of the answers heretofore indicated, save and except the general denial, which was omitted; further, a statement that the reply to such answers was a general denial, and then closes as follows: "These pleadings make the issue which you are to determine by your verdict." There were many material facts alleged in the petition, and necessary to be proved by plaintiff, which were not met, or intended to be met, by the answer, save by means of such general denial. It is elementary that the duty of the trial court in such a case is to fairly state the issues raised by the pleadings. By reason of such omission this was not done. The issues as stated left the facts forming the basis of plaintiff's recovery largely confessed by the defendants, an error so prejudicial as to impel reversal of the judgment.
As the case may be retried, it might be well to consider...
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