Leavell v. Leavell

• Decision Date: 14 January 1907
• Citation: 122 Mo. App. 654,99 S.W. 460
• Parties: LEAVELL v. LEAVELL et al.
• Court: Missouri Court of Appeals

99 S.W. 460

122 Mo. App. 654

LEAVELL v. LEAVELL et al.

Kansas City Court of Appeals. Missouri.

January 14, 1907.

Rehearing Denied February 4, 1907.

1. EVIDENCE—DECLARATIONS OF THIRD PERSONS.

Plaintiff in an action against her husband's parents for alienation of his affections may not show his statements made out of their presence.

2. HUSBAND AND WIFE—ALIENATION OF AFFECTIONS — SUFFICIENCY OF EVIDENCE — MALICE.

Evidence in an action against the parents of plaintiff's husband for alienating his affections held insufficient to support a verdict for her, in view of the necessity of showing that they were actuated by malice, rather than an honest interest in his welfare; that is, that their acts were done for the purpose charged, and that they knew their acts were wrongful.

Johnson, J., dissenting in part.

Appeal from Circuit Court, Cass County; Nick M. Bradley, Judge.

Action by Pearl Leavell against William R. Leavell and another. Judgment for plaintiff. Defendants appeal. Reversed.

A. A. Whitsitt, Given & Glenn, and Barnett & Burney, for appellants. James S. Brierly, Thos. N. Haynes, and A. A. Howell, for respondent.

ELLISON, J.

Defendants are husband and wife and this action was instituted to recover damages from them, for alienating the affections of plaintiff's husband, who was the son of the defendants, and who is known in this record as "Garfield," his Christian name. There was a judgment in the trial court for the plaintiff. The case is before us the second time. It is reported in 114 Mo. App. 24, 89 S. W. 55. By reference thereto, it will be found that plaintiff, a young woman 19 years of age, and a son of defendants, 22 years of age, were married and came immediately to live with defendants, who were elderly people living on a farm, plaintiff being pregnant as the result of illicit intercourse between her and Garfield. The petition charged that defendants "wrongfully, wickedly, wantonly, and maliciously acted, conspired, and co-operated together, with the wrongful, wicked, wanton, and malicious intent to cause and induce" plaintiff's husband to abandon her, and that, in pursuance of said intent, they did "wrongfully, wickedly, wantonly, and maliciously entice, persuade, influence, and induce plaintiff's husband to leave and abandon her"; that since causing her husband to abandon her, the defendants, with the same motive and intent, have kept him away from her; that such conduct on their part caused her husband's affections to be alienated; and that she has been deprived of his support, society, etc. It will be further seen from that report that the judgment was reversed and the cause remanded by a majority of the court, principally for the reason that the instructions for plaintiff did not submit the hypothesis of defendants' conspiring and co-operating in the malicious conduct charged against them; though Judge Broaddus thought that was immaterial in view of the fact that, in his opinion, no case was made against defendants as charged, and that the judgment should, for that reason, have been reversed without remanding. The evidence at the last trial, with an important exception, was substantially the same as at the first. There were some changes made by the plaintiff in portions of her testimony, the motive for which is strongly impugned by defendants' counsel, and, it seems to us, not wholly without cause. There was also some evidence consisting of conversations with defendants which is of little moment in the view we have taken of the case. There was also some evidence of statements of plaintiff's husband made out of the presence of defendants which we consider to be harmful and reversible error. Westlake v. Westlake, 34 Ohio St. 634, 32 Am. Rep. 397. There was also error in instruction No. 3, given for the plaintiff, in which all question of malice is omitted and a verdict directed for her if defendants merely co-operated together and intentionally enticed or persuaded plaintiff's husband to separate from her. Barton v. Barton (Mo. App.) 94 S. W. 574, 582, as well as the authorities to which we shall hereinafter refer. There was also cause for a new trial in improper remarks of plaintiff's counsel in addressing the jury.

On the first appeal, it was with much misgiving that I arrived at the conclusion that a case had been made for the jury. At this time, in view of plaintiff's written admission of her conduct towards these defendants in a note addressed to them, which was not in evidence at the first trial, and was only referred to as containing an invitation to defendants to visit her, in view of her own testimony at the last trial, and considering that the defendants are the father and mother of plaintiff's husband, and the absolute necessity for her to show that they were actuated by malice, rather than an honest interest in the welfare of their son, we have concluded that no case has been made. What is malice? As known to the law, it is a wrongful act done intentionally without just cause or excuse. Goetz v. Ambs, 27 Mo. 28. It is not merely doing an act intentionally which is wrongful, but it must have been known to be wrongful. Trauerman v. Lippincott, 39 Mo. App. 478. We understand this view to have met the approval of the Supreme Court in McNamara v. Transit Co., 182 Mo. 676, 81 S. W. 880, 66 L. R. A. 486, though the court approves the form of an instruction which submits the act as "intentionally done"; holding that that would indicate to the jury that the party charged knew that the act was wrong and that he had no just cause or excuse for doing it. So, therefore, to make out a case against these defendants the evidence must not only show that they did the acts which plaintiff insists caused the alienation of their son's affection for her, but it must show that they knew the acts were wrongful and done for the purpose charged. That such showing should be made is apparent from authorities hereinafter cited. In considering whether such showing was made, it is of the greatest importance to keep in view that the defendants were the mother and father of plaintiff's husband and of the plaintiff's conduct towards them, for her conduct may explain or account for their actions. And it is also necessary, from the fact that proof of malice need not consist of open and affirmative declarations, but may be made out by conduct and acts. In order to properly characterize one's actions or conduct, it is necessary to consider the circumstances, situation, and relationship which exist. Thus, as affecting a married couple, acts and conduct of a stranger which would be justly characterized as those of a malicious intermeddler might be but the natural impulse of the parents which would be set down to their credit by all right-thinking people. This is the view of all the authorities which we have found where the relationship of the defendant has been considered. Hutcheson v. Peck, 5 Johns. (N. Y.) 196; Tucker v. Tucker, 74 Miss. 93, 19 South. 955, 32 L. R. A. 623; Payne v. Williams, 4 Baxt. (Tenn.) 583; Rice v. Rice, 104 Mich. 371, 62 N. W. 833; Burnett v. Burkhead, 21 Ark. 77, 76 Am. Dec. 358; Huling v. Huling, 32 Ill. App. 519; Smith v. Lyke. 13 Hun (N. Y.) 204; Brown v. Brown, 124 N. C. 19, 32 S. E. 320, 70 Am. St. Rep. 574. In the case first cited Chief Justice Kent said: "If the defendant did not stand in the relation of father to the plaintiff's wife I should not, perhaps, be inclined to interfere with the verdict. But that relationship gives rise to a new and peculiar interest. * * * A father's house is always open to his children, and whether they be married or unmarried it is still to them a refuge from evil, and a consolation in distress. Natural affection establishes and consecrates this asylum, and, according to Lord Coke, it is `nature's profession to assist, maintain, and console the child.' I should require, therefore, more proof to sustain the action against a father, than against a stranger. It ought to appear, either that he detains the wife against her will, or that he entices her away from her husband from improper motives. Bad or unworthy motives cannot be presumed. They ought to be positively shown, or necessarily deduced from the facts and circumstances detailed. This principle appears to me to preserve, in due dependence upon each other, and to maintain in harmony, the equally strong and sacred interests of the parent and the husband. The quo animo ought, then, in this case, to have been made the test of inquiry and the rule of decision." In the case last above cited, it was said: "It cannot be that the law disregards the tender relations of kinship and natural affection between parent and child and the duties which such relations impose, even though the child is married. In case of unhappiness and disagreements between the married couple, it is almost impossible to conceive of the indifference on the part of the parent to such conditions, and certain it is that the child naturally turns to the parent for comfort and advice under such circumstances. There are laws of natural affection and of natural duty, and municipal law will not obstruct their free operation as long as they are not abused. The presumption in fact and in law in all such cases must be, and is, that the parent will act only for the best interest of the child and for the honor of the family."

Every legal presumption is that the parent acted for the best interest of the child. Reed v. Reed, 6 Ind. App. 317, 33 N. E. 638, 51 Am St. Rep. 310. Can it be said that, if a parent shall advise his child in good faith, he does so at the risk of financial ruin? "It would be strange, indeed, if parents, under peril of legal consequences, must keep silence under such circumstances, or must clothe in terms of respect their expressions of outraged feeling, when even strangers would be excused for speaking with freedom." White v. Ross, 47 Mich. 172, 10 N. W. 188. So it has been ruled that a parent, acting in response to...