Lewellen v. Haynie

• Decision Date: 11 October 1926
• Docket Number: No. 25194.,25194.
• Citation: 287 S.W. 634
• Parties: LEWELLEN v. HAYNIE.
• Court: Missouri Supreme Court

287 S.W. 634

LEWELLEN v. HAYNIE.

No. 25194.

Supreme Court of Missouri, Division No. 1.

October 11, 1926.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Action by Edward Lewellen against Joel C. Haynie. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Randolph & Randolph, of St. Joseph, Roger S. Miller, of Kansas City, and Scott J. Miller, of Chillicothe, for appellant.

Pross T. Cross, of Lathrop, Davis & Ashby, of Chillicothe, and Gerald Cross, of Lathrop, for respondent.

LINDSAY, C.

The first count of the petition charged the defendant with the alienation of the affections of plaintiff's wife. The second count charged criminal conversation. The case was submitted on the second count, and there was a verdict for $15,000 actual damages and $10,000 punitive damages. There are many assignments of error, but primarily it is insisted that the demurrer to the evidence should have been sustained, and this is contended for upon the grounds that the testimony was insufficient to establish a legal marriage; that there was not sufficient evidence of sexual intercourse; that there was such evidence of connivance on the part of the plaintiff as to bar a recovery.

The suit was brought in Caldwell county; the venue thence changed to Livingston county, and thence to Daviess county. The plaintiff lived at Kingston, in Caldwell county, and had lived there since a time antedating his marriage, which occurred, he said, on the 23d day of August, at Hamilton, in the same county. The defendant, a man about 61 years of age, was a farmer and a large landowner, and had lived about three miles northwest of Hamilton for 20 years. Hamilton is 8 or 9 miles north of Kingston. The defendant's wife had obtained a divorce from him not long before the events giving rise to this suit. The acquaintance between defendant and the plaintiff's wife began in the latter part of 1921 or early in 1922, and the particular meeting between them, which resulted in the bringing of this suit, was about June 22, 1922. This suit was brought on the day following.

The defendant said he thought he was introduced to plaintiff's wife by Fred Gambil in the winter of 1921-1922, but saw little of her until the following spring. The evidence showed that there lived at Hamilton a Mrs. Galpin, and that a Mrs. Lybarger, who was the daughter of Mrs. Galpin and divorced from her husband, also during the period from March 22, to about the end of June following, was living in Hamilton, at the home of her mother, Mrs. Galpin.

Mrs. Lybarger was the person approached by plaintiff for the purpose of catching his wife or getting evidence of her misconduct. Mrs. Lybarger's deposition was taken by the plaintiff, and, she having died before the trial, her deposition was read in evidence by plaintiff. She testified that from March until July she saw the defendant and Mrs. Lewellen two or three times a week; that they met sometimes at Mrs. Galpin's house, and it appears that at other times they met at the home of Fred Gambil, who was a bachelor, living in or near the outskirts of Hamilton. The evidence tends to show the frequent association together of the four persons, Fred Gambil, Mrs. Gaplin, the defendant, and the plaintiff's wife. Mrs. Lybarger was approached by the plaintiff shortly prior to June 22, 1922, for the purpose of arranging to have her watch and report to him the actions of his wife, or to bring about such arrangements or to give such information as would enable the plaintiff to ascertain the nature of the association between his wife and defendant. Mrs. Lybarger in her deposition testified concerning an occasion in May, 1922, when Mrs. Galpin, Fred Gambil, defendant, and plaintiff's wife were at Fred Gambil's house preparing for a fishing trip. She said that upon this occasion she saw, defendant sitting in Mrs. Lewellen's lap, and saw him kiss her on the cheek; that this was in the room where all the parties named were, and could see; that while they were at the dinner table upon that occasion the defendant had said, "I would rather not be present if you have others here —not go fishing;" and that he further said he did not "want Mrs. Lewellen to have any trouble whatever." Mrs. Lybarger said she did not know of her own knowledge whether they took the fishing trip or not, but that she heard Mrs. Galpin and Mrs. Lewellen say that they went and were gone several days.

A large portion of the testimony deals with what occurred on the 22d of June. The testimony shows that the plaintiff, only a short time prior to June 22d, became suspicious of the conduct of his wife in relation to defendant. The plaintiff himself testified of an occurrence on about the 9th of June. According to his testimony, his wife's sister at Hamilton had been sick with a lingering illness, from which she died about the date last mentioned; that his wife had been gone from home 18 nights; that he found out she had as he expressed it, "never stayed with her sister but one night, and that was on the Decoration Day night, and it rained all night and she couldn't get away that night." On the day on which the plaintiff's sister died, about the 8th or 9th of June, plaintiff said his wife refused to go home with him, saying she would stay at Hamilton to meet a train, and to meet some relative expected to come to her sister's funeral. Having learned that his wife had not been staying at her sister's during the nights of the sister's sickness, the plaintiff said on the night in question he took his oldest son, who was about 22 years old, and they returned from their home in Kingston to Hamilton for the purpose of watching his wife. He says he instructed his son to look about in town, and to see whether he could see her anywhere at the Galpin home. The plaintiff testified that about 11:30 or 12 o'clock he went to the home of Fred Gambil and stood behind a hedge; that about 12:30 or almost 1 o'clock a Buick car drove up; and that when they went into the driveway they turned off the lights; that the first one who got out of the car was his wife; that the moon was shining bright; and that when he saw his wife get out of the car she was "bare down to her waist"; that she had her outside waist off, had her corset off and her outside skirt, and had a bundle in her arm, and he supposed that was what she had in her arm. Other testimony shows that Fred Gambil brought the shirtwaist to plaintiff's wife at Mrs. Galpin's home the next day. Plaintiff further stated that his wife and the defendant on this occasion walked around on the east side of the house, and she pumped him a drink, and they stood there and talked about 30 minutes; that Mrs. Galpin stayed at the car and talked to the other man who was in the car; that after defendant left plaintiff's wife, defendant walked around and got in the car, and they drove away. Plaintiff said that prior to that occasion he had not seen defendant to know him. It seems probable that it was very soon after the occurrence related that the plaintiff saw Mrs. Lybarger and engaged her services.

The statement of that part of the testimony which counsel for defendant say showed consent or the connivance of plaintiff is deferred, and statement is now made only of what occurred on the 22d day of June. The evidence shows that on that day the plaintiff, pursuant to prearrangement with Mrs. Lybarger, let it be understood by his wife that he and his son would be absent on that day at Kansas City. He went to Hamilton on that day, and, according to his testimony, spent the day at the home of Jeff Craig, who lived in Hamilton. and who was an uncle of Mrs. Lybarger, and who was, it may be stated here, the person approached by the plaintiff when he desired to arrange for a talk with Mrs. Lybarger to obtain her services: On the day mentioned, June 22d, Mrs. Lybarger and her little girl went to Kingston. Plaintiff's wife was in Kingston, and it appears from testimony introduced by plaintiff that she and three of her children were in the courthouse yard in the afternoon of that day in company with Mrs. Lybarger.

The testimony of the children of the plaintiff, introduced by him, was that in the afternoon of that day the defendant was in Kingston, and in conversation with plaintiff's wife and with Mrs. Lybarger; that they sat. upon a bench in the courthouse yard. The plaintiff's boy, 7 years old, testified that upon this occasion the defendant gave him a nickel, with which he went and got "crackerjacks." The testimony of these children was that their mother and Mrs. Lybarger got in a car and drove away with two men.

Mrs. Lybarger testified that upon this afternoon, while at Kingston, she called her uncle, Jeff Craig, to come to Kingston for them; that he came in an Overland car and took her and her little girl and Mrs. Lewellen; that when they got about a quarter of a mile from home (home of the witness) they stopped to get out of the car about a quarter of a mile from home; that she did not want to get out in front of the house because her sisters had just arrived from Oklahoma; that after they had got out, and had started to walk, Mr. Haynie, the defendant, came along in his car; that they hailed him; and that they got into defendant's car, a Ford roadster with one seat, and went to the house (Mrs. Galpin's house); that they spent the evening there, until time to go to the carnival. Defendant said that on the occasion of being hailed by the two women he took them in his car, carried them about 50 yards, and dumped them out.

The testimony was that this was the last day of a street fair or carnival being held at Hamilton. Mrs. Lybarger said that in the evening she and Mrs. Lewellen and defendant went together to the carnival; that she and Mrs. Lewellen were taken by the defendant in his car, the Ford roadster; that they remained at the carnival a while; that then defendant took the witness and her little child and Mrs. Lewellen to the home of...