Long v. Fischer, 46381

• Decision Date: 19 July 1972
• Docket Number: No. 46381,46381
• Citation: 210 Kan. 21,499 P.2d 1063
• Parties: Warren Dean LONG, Appellee, v. Edward F. FISCHER, Appellant.
• Court: Kansas Supreme Court

Page 1063

499 P.2d 1063

210 Kan. 21

Warren Dean LONG, Appellee, v. Edward F. FISCHER, Appellant.

No. 46381.

Supreme Court of Kansas.

July 19, 1972.

Rehearing Denied Sept. 14, 1972.

Syllabus by the Court

1. Before a plaintiff can recover damages for the alienation of the affections of his or her wayward spouse, if is necessary that plaintiff establish-among other things-that the wayward spouse did not voluntarily accept the defendant's advances at the outset of the affair and that he or she did not thereafter actively contribute to causing the affair by intentionally seeking the companionship and the affection of the defendant.

2. In an action by a man for alienation of his former wife's affections the record is examined and it is held there is a fatal lack of evidence to prove that defendant was the procuring cause of the alienation since plaintiff failed to establish the requirements set forth in Syllabus 1.

Don W. Noah, of Noah & Noah, Beloit, argued the cause and was on the brief for appellant.

Daniel D. Metz, of Metz & Metz, Lincoln, argued the cause, and Theodore M. Metz, Lincoln was with him on the brief, for appellee.

FROMME, Justice.

The plaintiff, Warren Dean Long, was awarded a jury verdict of $8,500 as balm for the alienation of the affections of his wayward spouse, Madonna. The defendant, Edward F. Fischer, who allegedly procured the alienation of affections, appeals.

Although nine points of error are raised on appeal, we believe that this case may be disposed of by considering the sufficiency of the evidence. The evidence was insufficient and defendant's motion for a directed verdict should have been sustained.

We will refer to the parties in this so-called 'eternal triangle' as Long, Madonna and Fischer.

Long married Madonna when she was seventeen years of age. Long was twenty-four. Following the marriage they lived on a farm near Cawker City, Kansas. Their life on the farm was happy but filled with hard work and little income. Later they moved to town and Long obtained employment with a farm implement company. They became the parents of two children and acquired a home on South Fifth Street in Lincoln, Kansas. Their marital relationship appears to have been normal until July, 1968. Long then noticed Madonna was becoming alienated from him.

Fischer, his wife and four children moved next door to the Longs in May, 1967. Long helped Fischer carry some of the household furnishings into the house. The two neighboring families thereafter enjoyed a close social fellowship. The children played together. The Longs attended parties in the basement of the Fischer home. The Longs sometimes helped prepare for the parties and clean up afterwards. They visited back and forth.

Long testified that Madonna began sleeping on the divan in September, 1968. Thereafter she refused to occupy the same bedroom with Long. Evidence of the procuring cause of the alienation prior to that time does not appeal in the record of the trial. Long testified that Madonna complained of illness in July, 1968, and began seeing a doctor in Salina. She made the trips to Salina alone and on occasion she stayed overnight with relatives. In July, 1968, the Long children attended the county fair at Osborne where their grandparents lived. The Longs arranged for Madonna to pick up the children at Osborne and return home with them after the fair was over. Somehow when she made the trip she did not arrive at the grandparents' home until 1:30 a. m. the next morning. Long and some of the relatives searched unsuccessfully for her. No information on whom she saw or what she did was placed in evidence. From these episodes, plus a later statement of Madonna during a family argument, we must, if possible, supply a procuring cause for the initial alienation.

Long testified that during a quarrel some six months later, Madonna stated, 'I had guessed right, everything I had suspicions of her doing I had guessed right.' Presumably she had referred to prior transgressions with Fischer in Salina and Osborne or to more recent ones in Lincoln.

As to that period prior to September, 1968, when Madonna refused to sleep with her husband, there is no evidence of any acts on the part of Fischer which could have alienated the affections of Madonna. Surmise, conjecture, speculation and plausibility will not supply a want of proof that defendant knowingly and intentionally alienated the affections of the wayward spouse. Guilt will not be inferred from opportunity. (Powers v. Sumbler,83 Kan. 1, 110 P. 97; Ogg v. Ogg, 124 Kan. 443, 260 P. 647.)

In the fall of 1968, Long Madonna, Fischer and Fischer's wife, Rosemary, attended several public V. F. W. dances together. Long testified that 'From July, 1968, on, . . . my wife and I argued every time we got on the dance floor but before that, no.' At these dances Fischer was attentive to Madonna. There is no evidence Madonna resisted his attentions or that Fischer forced himself on her. When Long threatened not to attend the dances Mandonna advised him if he did not bake her she would go with the Fischers. Long took Madonna to these dances because of her coercive threats to go with the Fischers. Fischer monopolized Madonna at these dances.

Long testified to finding his wife in a tent in the Fischer backyard sometime during the fall of 1968. About midnight he awoke and looked for Madonna on her divan. She was not there. After making a search of the premises he spotted a tent in the Fischer backyard. Upon further investigation he found Madonna in the tent in her night clothes with a housecoat and a blanket. Fischer was nowhere to be seen. Long jerked his wayward Madonna out of the tent and when they were back on his property he 'slapped her a couple of times and accused her of meeting Fischer and she denied it.'

The next chapter of this sordid affair took place when the two couples attended the New Year's Eve dance on December 31, 1968. Long did not want to attend this dance at Kanopolis. Madonna had planned to attend for sometime. Long finally agreed to go when Madonna threatened to go with the Fischers. The two couples stated out with a few drinks at the Fischer house, then they drove to Kanopolis. Rosemary Fischer was not feeling well. Long and his wife, Madonna, danced the first dance together. Thereafter Fischer danced with Madonna and Long retired, with his bottle, to the car where he spent the evening. No one came to look for him. On returning to the dance hall at midnight a quarrel ensued. Madonna's blouse was torn by Long and Fischer got a New Year's Eve kiss from Madonna. Long got no kiss from his wife. Madonna drove the car home with Long sitting silently beside her in the front seat. The two couples returned early that morning to the Fischer home to obtain something to eat. Madonna decided to spend what was left of New Year's day at the Fischers'. Long implored Madonna to return home with him. She refused. A man of the cloth was called in to persuade her to leave, and later her parents, but all to no avail. On the morning of January 2, 1969, Madonna was persuaded to return to her house by Fischer.

The next chapter might be referred to as the washing machine episode. The Longs' washing machine broke down and Madonna was offered and did accept the use of the Fischer washing machine. She spent considerable time at the Fischers' doing her washing, drinking coffee and so forth. On January 11 or 12, 1969, Long woke up at 5:30 a. m. and saw his Madonna coming out of the back door of the Fischer house. When Madonna arrived home no argument ensued because Long did not want to wake up the children at that hour of the morning. The Fischer house was not lighted, the hour of Madonna's visit was unusual and the purpose of the trip was not truly explained.

Madonna began working in a retail liquor store in January, 1969. Fischer was seen in the store on several occasions for periods of roughly an hour or so. Fischer was advised by the owner that his loitering was against the rules, so he quit visiting the store. Six weeks later Madonna quit work.

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