Linck v. Vorhauer
| Decision Date | 16 February 1904 |
| Citation | 79 S.W. 478,104 Mo.App. 368 |
| Parties | LINCK, Respondent, v. VORHAUER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court.--Hon. J. W. McElhinney, Judge.
Judgment affirmed.
Ed. L Gottschalk and Thos. H. Sprinkle for appellant.
(1) Plaintiff's alleged cause of action is barred by the statutes of limitations. R. S. 1899, sec. 4273; Brockman v. Ritter, 21 Ind.App. 250. The cause of action accrues when plaintiff first had a legal right to sue. Schade v Gehner, 133 Mo. 252; Rankin, Jr., v. Schaeffer, 4 Mo.App. 108; Rowsey v. Lynch, 61 Mo. 560; 19 Am. & Eng. Ency. of Law (2 Ed.), 193; Bird v. Railroad, 30 Mo.App. 365; Bunten v. Railroad, 50 Mo.App. 414; Powers v. Railroad, 158 Mo. 87. (2) Two years prior to wrongful acts is too remote. People v Hendrickson, 53 Mich. 525. Proof of adultery is inadmissible unless pleaded. 15 Am. & Eng. Ency. of Law (2 Ed.), 863. Inference upon inferences not permissible. Gaskill v. Lead & Zinc Co., 84 Mo.App. 521; Dill v. Railroad, 37 Mo.App. 458; Yarnell v. Railroad, 113 Mo. 580; State v. Lackland, 136 Mo. 32; Lenox v. Harrison, 88 Mo. 496; Bigelow v. Railroad, 48 Mo.App. 371; Chemical Co. v. Railroad, 78 Mo.App. 312; Glick v. Railroad, 57 Mo.App. 97. (3) Damage to character not measure of damages. (4) Mere alienation of affections is not sufficient, but something further tending to prevent or dissuade the husband from living with the wife is requisite. Modisett v. McPike, 74 Mo. 647; 15 Am. and Eng. Ency. of Law (2 Ed.), 865 and 866.
Henry H. Oberschelp and Arthur Digby for respondent.
(1) So long as the marriage exists, any interference with the wife's enjoyment of her husband's society, support, protection, comfort and affection is actionable, and enforceable even by injunction. Ex parte Warfield, 40 Tex. 413, 76 Am. St. 724. (2) If an act is wrong at the outset, its continuance can not become rightful. Wells v. New Haven & Northampton Co., 151 Mass. 46, 21 Am. St. 421. (3) The petition alleges continuing and recurring wrongs, in which cases plaintiff can recover for damages sustained since five years prior to the filing of the petition. 19 Am. & Eng. Enc. of Law (2 Ed.), 201; Cedar Lake Hotel Co. v. Cedar Creek Hydraulic Co., 79 Wis. 297; Barclay v. Grove, 11 A. 888; Lentz v. Carnegie, 145 Pa. St. 612; Colrick v. Swinburne, 105 N.Y. 503; Reed v. State, 108 N.Y. 408; Smith v. Sedalia, 152 Mo. 283, 300. (4) Where a course of conduct is shown to exist, it is proper to prove acts committed at its commencement. Previous acts may be proven as explaining or giving color to subsequent acts. State v. Clawson, 32 Mo.App. 93, 97; 30 Mo.App. 139, 143; State v. Coffee, 75 Mo.App. 88, 91; Law of Presumptive Evidence (Lawson), 223, 219, 228. (5) Plaintiff's allegations of inducement were sufficiently specific. Nichols v. Nichols, 134 Mo. 191. (6) It was proper to use the words "character" and "condition" in defining the measure of damages. Hartpence v. Rogers, 143 Mo. 623, 635, 636; Modisett v. McPike, 74 Mo. 641. (7) A retrial of this case should not be ordered unless positively necessary. Broyhill v. Norton, 74 S.W. 1024, 1025; R. S. 1899, sec. 865.
Since the judgment appealed from was recovered in the circuit court, the defendant has intermarried with Edward C. Linck, and the name, Dora Linck, as defendant, has been substituted in this court for that of Dora Vorhauer and the style of the cause changed to correspond with the change in the name of the defendant.
This is an action instituted by the plaintiff for the alienation of the affections of plaintiff's husband. The material allegations of the petition are that the plaintiff was married to Edward C. Linck on July 23, 1879, and continued to live with him until the seventh day of August, 1895.
"That during all that time she and her said husband enjoyed the aid, support, protection, comfort, companionship, society and affection of each other; that defendant well knowing that plaintiff and Edward Linck were husband and wife, and that they were living happily together, enjoying the aid, support, companionship society and affection of each other, wrongfully contriving and intending to injure plaintiff and deprive her of the comfort, society, affection, protection and support of her said husband; did on the seventeenth day of August, 1895, wickedly induce said Edward Linck to abandon and desert plaintiff to live with the defendant, and to neglect to support plaintiff properly;" and said husband being so influenced did leave and abandon plaintiff. "That defendant has ever since continued and still continues to entice, influence and induce said Edward Linck to remain away from plaintiff and not to support her and not to bestow upon her such affection as he formerly did, and that he lives with defendant."
That said Edward Linck, under this influence, has failed to support plaintiff or bestow upon her such affection as formerly but has lived and still lives with the defendant. "That ever since said abandonment the defendant has wrongfully, wickedly and maliciously detained and harbored plaintiff's husband, and has kept him separate and apart from plaintiff, and has, by her said wrongful, wicked and malicious acts and conduct deprived plaintiff, and still deprives her of the aid, support, protection, comfort, companionship, society and affection of her husband," for which plaintiff claims $ 10,000 actual and $ 5,000 punitive damages.
Defendant's answer is, first, a general denial; second, a plea of five years statute of limitations; third, that whatever alienation of affections arose they were caused by the misconduct and acts of the plaintiff, and various efforts of reconciliation between the parties were set out.
The reply is a general denial.
Plaintiff and Edward C. Linck were married in July, 1879, and finally separated August 17, 1895. Four children were born of the marriage, two of whom are living, a boy and a girl.
The jury found the issues for the plaintiff and assessed her damages at four thousand dollars, but allowed her no punitive damages. To avoid the awarding of a new trial, plaintiff entered a remittitur of fifteen hundred dollars and judgment was rendered in her favor for twenty-five hundred dollars. Defendant appealed from this judgment.
1. Defendant insists that the case falls within the five years statute of limitations. It is both averred and admitted by plaintiff that her final separation from Edward C. Linck took place more than five years prior to the commencement of the suit, and that they never thereafter lived together as man and wife. The evidence tends to show that for the first year or two after the separation Linck cohabited with the defendant, and finally took up his residence with her and continued to reside with her down to the day of the trial. It further shows that Linck's intimacy with the defendant was the entering wedge, if not the sole cause of the separation between himself and wife. After the separation he brought three successive suits against plaintiff for divorce, in all of which he was unsuccessful. The evidence, therefore, is conclusive that plaintiff had information before and at the time of the separation of Linck's associations with the defendant, and the plea of fraud or concealment would not be available to her as a defense to the running of the five year statute of limitations if the statute is applicable to her. Sanborn v. Gale, 26 L.R.A. 864. But being the wife of Edward Linck, she was under the disability of coverture and was expressly exempt from the operation of the statute of limitations. Section 4279, R. S. 1899; Lindell Real Estate Co. v. Lindell, 142 Mo. 61, 43 S.W. 368; Reed v. Painter, 145 Mo. 341, 46 S.W. 1089; Linville v. Greer, 165 Mo. 380, 65 S.W. 579.
2. Hartman, a witness for plaintiff, testified that he worked for her husband, Edward C. Linck (in the paper hanging business), during the years 1893 and 1894; that during the time he worked for two and one-half weeks papering the defendant's house. He said: ...
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