Lewellen v. Haynie
| Decision Date | 17 February 1930 |
| Docket Number | 16296 |
| Citation | 25 S.W.2d 499 |
| Parties | LEWELLEN v. HAYNIE. |
| Court | Kansas Court of Appeals |
Rehearing Denied March 3, 1930.
Appeal from Circuit Court, Daviess County; J. D. Allen, Special Judge.
Action by Edward Lewellen against Joel C. Haynie. Judgment for plaintiff, and defendant appeals.
Affirmed.
Roger Miller, of Kansas City, and Scott J. Miller, of Chillicothe for appellant.
Pross T. Cross & Son, of Lathrop, and Davis & Davis and Davis & Ashby, all of Chillicothe, for respondent.
Action for criminal conversation. Dramatis personae; Edward Lewellen, consort; Nellie Lewellen, spouse; Joel C. Haynie, paramour (or goat). Supernumeraries appear in number, and are variously designated in recrimination as spy, hireling, informer, confederate, conspirator, pawn, seducer, and bawd. The scene of this stirring drama is laid in virtuous Caldwell county, and hard by the decorous towns of Kingston and Hamilton. It is admitted that for moving sentiment, injured innocence, fast life, and foul intrigue there has never been anything like it from the salubrious environs of Hamilton to the suspected vicinage of Hollywood.
When this suit was originally filed, the petition contained two counts, one for alienation of affections and the other for criminal conversation. There have been two trials. The first count of the petition was dismissed at the initial trial, at which time judgment went for plaintiff for an amount sufficient to carry the appeal to the Supreme Court. The case was there presented, and, in a learned opinion, the evidence was set forth in substance, and, on phases, in detail; and the law applicable to the questions raised was extensively discussed and specifically applied. The case is reported in 287 S.W. 634. Reference is made thereto for a statement of the facts, which we find substantially in accord with the evidence developed on the second trial, with a few exceptions, which will be noted hereafter.
The second count of the petition upon which the cause was tried forms the triangle in black and white, with the principals occupying the respective corners, and plaintiff hotly charges "that while plaintiff and his wife were living together as such and enjoying the aid, comfort, society, companionship and affections of each other, the defendant, well knowing that plaintiff and his said wife were married and were husband and wife, on or about the _______ day of June, 1922, and on numerous occasions theretofore, did wickedly, maliciously and unlawfully seduce, abuse, and carnally know plaintiff’s said wife and debauch, defile and hold adulterous intercourse with her and render her unfit to longer reside with plaintiff as his wife." Plaintiff appraised his actual loss at $15,000, and demanded that sum with a like amount as smart money.
Defendant denied generally, and further answered with a special charge of conspiracy to entice and entrap him for the purpose of a lawsuit; that said conspiracy was entered into by plaintiff with his wife, a hired agent, and other assistants, who agreed and conspired and employed their efforts to have the woman meet defendant and arrange an assignation, notify the plaintiff of the time and place in order that he might appear with witnesses and discover defendant in a compromising position with plaintiff’s wife; that arrangements had previously been made for the filing of a lawsuit if the scheme prospered, and that a division of the gain was agreed upon. The answer admits that the defendant was in company with plaintiff’s wife, and that he took her in the nighttime to the house of his friend, at her request; that his friend was not at home; that they got out of their automobile; and that plaintiff’s wife took out the lap robe, threw it upon the ground, and, while they were in this position, plaintiff and others appeared and accused defendant of improper relations with his wife. The concluding paragraph of the answer is in these words:
The case originated in Caldwell, but was finally tried in Daviess county upon a second change of venue. The facts, and the tendency of the proof, need not be stated in detail or generally here, but will be referred to in disposition of the questions raised on this appeal.
The last trial resulted in a verdict for plaintiff in the total sum of four thousand dollars, three thousand of which was awarded as actual and one thousand as punitive damages. Both parties filed motions for a new trial. Subsequently plaintiff withdrew his motion. Defendant’s motion was overruled, and he duly appealed.
Opinion.The errors assigned are (1) overruling the demurrer; (2) misconduct of counsel; (3) exclusion of evidence; (4) that the trial judge had no jurisdiction; and (5) error in giving and refusing instructions. The points will be dealt with in order.
Appellant says that the demurrer should have been sustained because the proof was insufficient to establish a legal marriage, and because there was such connivance and consent on the part of plaintiff as to bar recovery. These same points were urged upon the previous appeal to the Supreme Court, where it was held upon the evidence presented in that case that both the question of marriage, and the question of consent and connivance were properly questions of fact to be submitted to the jury. We have examined the evidence in this case upon these subjects, and find that it is no less persuasive, and it does not vary materially from the evidence in the former case, except that the proof of the marriage as offered on the previous trial was supplemented by the introduction of the marriage license and the certificate of the pastor officiating. On the question of consent and connivance, the evidence on the part of plaintiff is a positive and direct denial of his guilt in this respect. Both of these questions were given close and extended consideration in the previous appeal. The points have been adjudged. Stare decisis.
The complaint of prejudicial misconduct of counsel is based upon alleged "statements in the presence of the jury which were improper, and engaging in disputes with witnesses and making slurring remarks to the witnesses and in his general conduct in the court before the jury in parading unnecessarily the children of the plaintiff before the jury." There is no further development of this point in the brief or argument, and no specific reference made to the record showing the matters complained of, the manner of objection, if any, and the action and ruling of the court thereon. The record is voluminous. Further, matters here complained of do not appear to have been called to the attention of the trial court in the motion for a new trial. Said motion alleged error in overruling objections made to the opening statement by plaintiff’s counsel and in the closing argument. The opening statement and argument do not appear in the abstract. We have seen nothing which would in any way indicate that the trial court abused discretion in its action and ruling upon any matter of exception to the conduct of counsel; and, in as much as the specific alleged misconduct is not indicated, and was not called to the attention of the trial court in the motion for new trial, we cannot say that the learned trial judge abused discretion and committed error. Adams v. Kendrick (Mo. Sup.) 11 S.W.2d 16, loc. cit. 22.
Appellant complains of the rejection of the offered testimony of his witness Swanson. The offer of proof was to the effect that the witness would testify that plaintiff’s wife roomed in her house for one year after the 22d day of June, 1922, and, while there, frequently talked about the case that her husband was bringing against defendant, and frequently stated that the agreement between plaintiff and plaintiff’s wife was that she should get in the presence of defendant and get him in a compromising position and catch him, and have her husband catch him for the purpose of bringing a lawsuit, and that, upon success, she and her husband would go back together; and that the witness would further testify that, after the trial, plaintiff’s wife saw her husband and demanded settlement according to the agreement, that he refused and said he would not have anything further to do with her. This offer of proof was objected to on the ground that it was hearsay, not tending to prove conspiracy, that it was a narrative of past occurrences, and for various other reasons. The objection was sustained by the court, and the offer excluded.
Appellant insists that this offer of proof tends to show the conspiracy; that it is a statement made by a coconspirator and is competent as an admission. The act upon which liability is charged occurred on the 22d day of June, 1922 and whatever led up to the occurrence, whether through a conspiracy or otherwise, it was accomplished and completed upon that date. It will be noticed that the offer of proof is most general in its nature in reference to time of the alleged admissions and statements of plaintiff’s wife, but is fixed generally at various times during the year following June 22, 1922. It could not have been made while executing conspiracy to entrap defendant, which entrapment, according to defendant, occurred on the date last named. The question of whether or not a conspiracy did in fact exist, and whether plaintiff consented to and connived at bringing about the thing of which he complains, was submitted to the jury in numerous instructions given...
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