Leavell v. Leavell

• Court: Kansas Court of Appeals
• Writing for the Court: ELLISON, J.
• Citation: Leavell v. Leavell, 89 S.W. 55, 114 Mo. App. 24 (Kan. App. 1905)
• Decision Date: 26 June 1905
• Parties: PEARL LEAVELL, Respondent, v. W. H. LEAVELL et ux., Appellants

89 S.W. 55

114 Mo.App. 24

PEARL LEAVELL, Respondent, v. W. H. LEAVELL et ux., Appellants

Court of Appeals of Missouri, Kansas City

June 26, 1905

Appeal from Cass Circuit Court.--Hon. Wm. L. Jarrott, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

A. A Whitsitt, Givan & Glenn and Barnett & Burney for appellant.

(1) The burden of proof is on the plaintiff to show by a preponderance of the evidence that the defendants co-operated together and acted in concert and that such acts and conduct were the cause of the separation of the plaintiff and her husband; and that defendants acted in bad faith, that their conduct and actions were for the deliberate, willful and wanton purpose of separating plaintiff and her husband. Modisett v. McPike, 74 Mo. 647; Strode v Abbott, 102 Mo.App. 169; Nichols v. Nichols, 147 Mo. 387; Tucker v. Tucker, 32 L. R. A. 624; Gernerd v. Gernerd, 40 L. R. A. 550.

J. S Brierly, A. A. Howell and T. N. Haynes for respondent.

(1) There was no error committed by the court in giving instructions asked by plaintiff. Love v. Love, 98 Mo.App. 562; Yowell v. Vaughn, 85 Mo.App. 206; Nichols v. Nichols, 147 Mo. 387; Modisett v. McPike, 74 Mo. 636. (2) The instructions as given for plaintiff, have been approved in similar cases. Love v. Love, 98 Mo.App. 562; Nichols v. Nichols, 147 Mo. 387; Hartpence v. Rogers, 143 Mo. 623; Modisett v. McPike, 74 Mo. 636; Yowell v. Vaughn, 85 Mo.App. 206. (3) To entitle plaintiff to recover compensatory damages, it was not necessary for her to either plead or prove malice, and the mere fact that she alleges more than required to make out a case, will not deny her the right to the relief which is both pleaded and proven. Yowell v. Vaughn, 85 Mo.App. 210, 211; Hornblower v. Crandall, 7 Mo.App. 220; Hartpence v. Rogers, 143 Mo.App. 632.

ELLISON J. JOHNSON, J., concurring. BROADDUS, P. J., dissenting.

OPINION

ELLISON, J.

The plaintiff's petition in this action is for damages resulting to her by reason of defendants alienating the affections of her husband and causing him to abandon her. It charges that defendants (who are husband and wife) "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." The petition further charges that since causing her husband to abandon her, defendants, with the same motive and intent, have harbored him and kept him away from her. That by all of such conduct defendants have caused her husband's affections to become alienated and she has been deprived of his support, comfort, society and companionship. The petition then prays for judgment for compensatory damages of $ 5,000; and for exemplary damages of $ 5,000.

The evidence in behalf of plaintiff and defendants consisted, mainly, of the testimony of themselves. It appears that defendants reside on a farm; that they had three children, two of whom (a son and daughter) were married and living to themselves; that the third, Garfield, who figures in this controversy, was about twenty-two years old and lived at home. That plaintiff, then about eighteen years old, worked for defendants as a domestic in the early winter of 1902 and 1903; that at some time, probably during her stay at defendants' house, the son, Garfield, seduced her under promise of marriage, and she became pregnant. On the 31st of March, 1903, he and she were married and on the next day he took her to defendants to live, when Mrs. Leavell gave them Garfield's room as theirs. They lived together at defendants' until the latter part of the following August, except a few weeks when she went to the house of the married son to wait upon his wife in confinement. In the latter part of August they rented a house and went to housekeeping in a village about one mile from defendants' house. They lived in that house two weeks when defendant, the father, bought a house and moved them into it in September. In that month she gave birth to the child and when it was about six weeks old she left the house and went to the hotel in the village to work, for the reason that her husband ceased to stay with her; she however stated that he claimed that she had left him.

It further appears from the testimony of the plaintiff, or, if from other sources, is not disputed, that Garfield's father gave him employment as a general farm hand at $ 18 per month and board. That the father being old, of poor sight and hearing, Garfield did the chores at morning and night. That while he stayed with plaintiff at this house in the village at night, he left early in the morning for his father's (as stated, about one mile distant) and did not get back until about nine o'clock in the evening. He took his meals at his father's. That when they went to housekeeping, they used the father's team and wagon in moving, and the father supplied them with a modest housekeeping outfit, though the plaintiff testified that she, "didn't know they (defendants) were going to send us away (to housekeeping) only just at the time, they did send us away without anything except what was absolutely necessary." She stated that, they "gave me a straw bed, comfort, two old quilts, everything they gave me had been used, had been used quite a while, too; they gave me a pair of pillows, two pair of pillow cases, two sheets, two towels and a skillet without a handle, and that was all in the way of cooking utensils, I believe, I don't remember anything else, and some lard." Further along in her testimony she said that they gave her a feather bed after the baby was born and that they (defendants) "got a small sauce dish pan, one little stew pan, got a stewer, got six plates, six cups and saucers, no spoons, six knives and forks; I only had an old silver knife Mrs. Leavell gave me when we moved, and two old spoons; she gave me them, I had no knives and forks, I had to have knives and forks and Garfield went and got them." Further along, she stated that defendants also gave them flour, bacon, lard, butter, eggs, milk, vinegar, vegetables, apples and chickens. It appears that she also had a stove, a table, carpets, window shades, etc., but whether these were purchased for them by defendants or by Garfield, plaintiff did not know. When she and Garfield were moving away from defendants' house, the old gentleman advised them to live peaceably; that whenever they found themselves getting into a quarrel, to stop and each to take a pinch of salt, that that would perhaps restore their good temper.

The foregoing is undisputed testimony, mainly from the plaintiff herself. She did not deny--and practically admitted--the good advice given them by the old gentleman. She quarrelled back at the old folks, though she said they always began it. But she further testified that upon three or four occasions before she went to housekeeping, defendants said things to her which indicated their desire and wish to be that she and Garfield should separate. That on June 20, Mrs. Leavell told her she might stay with them until she was confined, but after that she did not want her around. That she would have to leave, but that she would not give Garfield up because he was their only son at home and their only dependence. And that Mr. Leavell said if he could help it his son should not live with her and that he would disinherit him if he did.

At another time while she was in a room overhead and Mrs. Leavell and Garfield were in the cellar, she heard Mrs. L. utter threats which she interpreted to be directed at her. That she began crying and when Mrs. L., coming up into the room, asked her what was the matter, she stated that it looked like she had no friends and that she couldn't even talk to Garfield. Whereupon Mrs. L. advised her to leave him and go to her mother in Illinois, but that she (Mrs. L.) would not give Garfield up. That then Mr. Leavell came in and Mrs. L. told him that plaintiff was quarrelling with her all the time, when the old gentleman said, "I will not have it. If she can't do better than that she had better go and work out." That if he had known what he then knew Garfield should not have married her. Again, at night, on August 14, a short time before she went to housekeeping, she was in her room over the kitchen, when defendants and Garfield were in the kitchen, and she heard them talking and her name used. That Garfield told her that they had to go to housekeeping. The next morning Mrs. L. asked her what she had been crying about, stating that she and Garfield were always quarrelling. That she told Mrs. L. they were not quarrelling--that she was crying because they had to go to housekeeping and that she hadn't anything to keep house with. That Mrs. L. replied that she was always fussing with Garfield and supposed she was then.

It further appeared in evidence that during the time plaintiff went to housekeeping, including her confinement, defendants did not go to see her, though she was provided with a girl to wait upon her and do the cooking. Mrs. L. stated that plaintiff had told her not to visit her. But afterwards, plaintiff wrote her a note asking her to come to see the baby. She did not go, stating "she thought it best not to."

In consideration of the foregoing we have concluded, though not without hesitation, that plaintiff made a case sufficient to be submitted to a jury. In the light of the relationship these defendants bore to plaintiff's husband, and of the potent undisputed facts, a synopsis of which we have stated we were strongly inclined to reverse the case...