Linden v. McClintock

• Decision Date: 12 June 1916
• Docket Number: No. 12033.,12033.
• Parties: LINDEN v. McCLINTOCK.
• Court: Missouri Court of Appeals

187 S.W. 82

LINDEN v. McCLINTOCK.

No. 12033.

Kansas City Court of Appeals. Missouri.

June 12, 1916.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by John F. Linden against T. R. McClintock. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Broaddus & Crow, of Kansas City, for appellant. Harry E. Longenecker, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff brought this suit charging that the defendant, while living in the home of plaintiff and his wife, obtained such an influence over her as to control her in all family affairs; that defendant influenced her against plaintiff, prevented her from living with him as his wife, destroyed plaintiff's home, and alienated his wife's affections.

The petition does not charge that defendant debauched the wife. It alleges that:

Plaintiff "is not in a position to state positively the relation that exists between defendant and his wife, but that said parties are now living in one house, and that this plaintiff, the husband, is excluded therefrom for reasons best known to defendant and plaintiff's wife."

The acts charged against defendant are alleged to have been done willfully and maliciously upon his part. At the close of plaintiff's case, a demurrer to the evidence was sustained. An involuntary nonsuit was thereupon taken with leave to move to set the same aside. Said motion being duly filed and overruled, plaintiff appealed.

In passing upon a demurrer to the evidence, the court must accept plaintiff's evidence as true and give it the benefit of every inference which can be reasonably drawn therefrom. Heine v. St. Louis, etc., R. Co., 144 Mo. App. 443, 129 S. W. 421; Alexander v. Scott, 150 Mo. App. 213, 129 S. W. 991.

In order to properly apply these well-established rules to the case in hand, it is first necessary to clearly understand the precise nature of plaintiff's cause of action, what it is he charges, what is sufficient to establish a prima facie case under the charge; and then the evidence must be examined to see whether it presents facts from which a jury might reasonably infer that plaintiff's charge is true.

Plaintiff and his wife were married in 1893 and lived happily together until 1912, when the troubles hereinafter stated arose. For a number of years, plaintiff and his wife and her father lived together in the same house. The plaintiff and his father-in-law bought a lot, and the home was erected thereon with money borrowed from a building and loan association. Plaintiff's evidence is to the effect that he helped pay this off. Some time in 1905 defendant's wife died. He had a large house, and, being a friend of plaintiff's wife's family, invited plaintiff to move with his wife, child, and father-in-law to his (defendant's) home. Plaintiff did not want to do so, saying they had just built and furnished a new home of their own. Whereupon, at the suggestion of plaintiff's wife, the defendant moved to plaintiff's home, and all of them lived amicably together until the death of the plaintiff's father-in-law on December 26, 1911. Defendant paid $3 a week board.

About two months before the father-in-law's death, he, believing he was going to die, wanted to transfer his interest in the home to his daughter. The defendant attended to this matter, and, on his advice, the father-in-law and plaintiff joined in a deed to the defendant and immediately he made a deed to plaintiff's wife, thus putting the entire title to the home in the wife.

Plaintiff's evidence is that he and his wife got along well together until after her father's death. He further testified that after the death of his wife's father, the defendant "would interfere with my domestic relations, by telling my wife that everything she did was all right, and would tell me to let her alone and go ahead about my own business."

It seems that the wife began going to tango dances, tango teas, and card parties, something she did not do before her father's death, and the husband objected. In these matters the defendant sided with plaintiff's wife and daughter telling the plaintiff they were doing all right — to let them alone. The daughter at this time was 18 years of age, and it is quite likely the wife began going on her account. There is no showing that the defendant took them to these places, nor is it to be inferred that either the wife or daughter should receive an imputation upon their moral character for these things. However, the daughter appeared at both public and private dances, giving exhibitions in costume with a young man as her dancing partner, and having her picture taken with him in dancing poses.

The plaintiff objected to his wife going to the hotels and other places where these dances were given, and to his daughter appearing there as she did. But the defendant would advise the wife and daughter, in plaintiff's presence, to continue going; and they did so. In justice to the mother and young lady, we say again that there seems to be nothing in the way of a stain upon their moral character for having done these things. But they were of such a nature as that a father might be reasonably apprehensive about and have a right to object to, especially the giving of public dancing exhibitions in scanty costume with a young man dancing partner and having their pictures taken in the poses shown in the pictures presented in the record. Nor do we say that the defendant's siding with the wife and daughter and against the husband, and advising them to pursue their course against his wishes, would of itself constitute ground for a suit for alienation of the wife's affections. But it is mentioned as a circumstance to be taken into consideration in viewing the entire situation to determine whether or not there is room for a legitimate inference which the jury might draw as to whether the defendant aided in the turning away of the wife's love from her husband.

About three months after the father-in-law's death, the wife refused to occupy the same bed with plaintiff, but slept in a bedroom on third floor, while her husband's bedroom remained on the second floor. The stairway to the third floor led almost directly from the door of defendant's room to the wife's room on third floor. As the wife was not living with plaintiff in a wifely relation, naturally the suspicions of the plaintiff were aroused, and he placed cards and pieces of paper so arranged that they would be disturbed if the door at the foot of the stairway were opened during the night. Several times these papers were found to have fallen, indicating that the door had been opened during the night. But the plaintiff frankly admits that he does not know whether there was any clandestine meeting...