Love v. Love
| Decision Date | 02 March 1903 |
| Citation | 73 S.W. 255,98 Mo.App. 562 |
| Parties | ELLA LOVE, Respondent, v. JOHN E. LOVE et ux., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Maries Circuit Court.--Hon. James E. Hazell, Judge.
AFFIRMED.
Judgment affirmed.
W. S Pope and Thomas M. & Cyrus H. Jones for appellants.
(1) The instruction offered at the close of plaintiff's evidence should have been given, because there was no substantial testimony offered which warranted the submission of the case to the jury. Asker v. Sharper, 25 Mo.App. 1; Stokes v. Burns, 132 Mo. 214; Weaver v Railroad, 60 Mo.App. 207; Pueschell v. Iron Works Co., 79 Mo.App. 464; Payne v. Williams, 63 Tenn. (4 Baxt.) 583; Pollock v. Pollock, 29 N.Y. 37; Young v. Young, 8 Wash. 81, 35 P. 592; Tucker v Tucker, 74 Miss. 93, 19 So. 955; Rice v. Rice, 104 Mich. 371, 62 N.W. 833; Huhling v. Huhling, 32 Ill.App. 519; Glass v. Bennett, 89 Tenn. (5 Pickle) 478; Hutchinson v. Peak, 5 Johns. 195; Reed v. Reed, 6 Ind.App. 317; Olinda v. Hall, 34 N.Y. 777; Thompson on Trials, sec. 2245; Commissioners v. Clark, 94 U.S. 278; State to use v. Springgate, 51 Mo.App. 619; Smith v. Railroad, 52 Mo.App. 42; Huhling v. Huhling, 32 Ill.App. 522; Tucker v. Tucker, 74 Miss. 93; Rice v. Rice, 104 Mich. 371; (2) Plaintiff's witness, W. E. Heady, was permitted by the court over the objections of appellants to testify to the declarations of appellant, John E. Love, father of John Rainey Love, before the alleged marriage. This testimony was inadmissible and constituted palpable error, because it was already in evidence that John Rainey Love was the son of John E. Love and that he was a minor, about nineteen years of age. Rice v. Rice, 104 Mich. 371; Tucker v. Tucker, 74 Miss. 93; Pollock v. Pollock, 29 N.Y. 37; Schouler on Domestic Relations (5 Ed.), sec. 51, page 71 and 72; Huhling v. Huhling, 32 Ill.App. 522. (3) The court committed error in not permitting defendant John E. Love to testify to the declarations made to him by his son, John Rainey Love, at the first conversation which appellant John E. Love had with his minor son after the marriage to the respondent. The appellant should have been permitted to have shown that John Rainey Love stated to his father in the first conversation after the marriage to respondent that he was compelled to marry the respondent on account of threats made against him by her brothers; that they threatened to kill him and he was afraid they would kill him, and that was the reason he married her. Bennett v. Smith, 21 Barb. 439; Bailey v. Bailey, 94 Ia. 598; Perry v. Lovejoy, 49 Mich. 530; McKinzie v. Louslachger, 113 Mich. 171; Rutt v. Rounds, 64 Vt. 439; Fratina v. Caslina, 66 Vt. 273; 1 Greenleaf on Evidence (16 Ed.), secs. 108, 102a and 162b. (4) Instruction No. 1, given on behalf of plaintiff, assumed that defendants acted jointly. Tucker v. Tucker, 74 Miss. 93; Rice v. Rice, 104 Mich. 371; Brown v. Brown, 124 N.C. 19, 70 Am. St. 575; Westlake v. Westlake, 34 Ohio St. 621. (5) Instruction number three given for plaintiff assumed the controverted questions in the case to be true. The instruction is, therefore, grossly erroneous, vicious in its scope, and constitutes reversible error. Plumber v. Milan, 70 Mo.App. 601; Shoe Co. v. Hilig, 70 Mo.App. 310; Peck v. Richey, 66 Mo. 121; Merritt v. Given, 34 Mo. 98; Moffitt v. Conklin, 35 Mo. 453; McDonald v. Beale, 55 Ga. 288; American v. Rimpert, 75 Ill. 288; Walters v. Railroad, 41 Ia. 71; Ins. Co. v. Baker, 94 U.S. 610; Maxwell v. Railroad, 85 Mo. 95. (6) Instruction number four given by the court on the part of the plaintiff told the jury, "that in addition to compensatory damages, but separate and apart therefrom, that if they believed that the injuries were inflicted wantonly and maliciously by the defendants they should assess the plaintiff such punitive damages as they might think proper," etc. Shoe Co. v. Hilig, 70 Mo.App. 310; Orscheln v. Scott, 79 Mo.App. 540; Peck v. Richey, 66 Mo. 114; Ins. Co. v. Seminary, 52 Mo. 480; Andreas v. Ketcham, 77 Ill. 377; Chase v. Horton, 143 Mass. 118; State v. Herrington, 12 Nev. 125. (7) Defendants' motion in arrest of judgment should have been sustained because in this case a joint trespass is charged and averred in plaintiff's petition, and a joint action will not lie against a husband or wife for a joint trespass. The husband alone would be liable. Dailey v. Houston, 58 Mo. 367; Flesh v. Lindsay, 115 Mo. 14. (8) The verdict of the jury in this case is excessive, not supported by the evidence and must have been the result of mistake, passion, prejudice or undue influence. The court should have sustained appellants' motion for new trial. In overruling the motion for new trial the court committed error. Lawson v. Mills, 130 Mo. 170; Dota v. Steinberg, 25 Mo.App. 328; Blackwell v. Adams, 28 Mo.App. 61; Walton v. Railroad, 49 Mo.App. 620. (9) The court permitted the respondent, over appellant's objections, to interrogate J. E. Love, one of the appellants, as to the amount of his property and as to what he was worth at the time of the trial. Overhalt v. Veiths, 93 Mo. 422; Stevens v. Railroad, 96 Mo. 214.
Crites & Garrison for respondent.
(1) To say that a showing of these facts would not warrant the case going to the jury, or a recovery by plaintiff, is to assert an absurd proposition, and one wholly unwarranted by the law or the facts in the case. Nichols v. Nichols, 147 Mo. 387; Hodgkinson v. Hodgkinson, 43 Neb. 269; Hartpence v. Rogers, 143 Mo. 623. That the acts complained of were wrongfully done is clearly shown by the evidence. Hartpence v. Rogers, supra; Nichols v. Nichols, 147 Mo. 387, and cases there cited. That they were wickedly done we cite the highest authority. Matthew 19:6; Mark 10:9. (2) Appellants' seventh contention is an objection to instruction number four, given for plaintiff by the trial court. The objection here is the same as to instruction number three, and is just as unreasonable. An instruction similar to this was also approved by the Supreme Court in the cases of Modisett v. McPike, 74 Mo. 636; Hartpence v. Rogers, 143 Mo. 623. (3) The question of the amount of verdict is peculiarly one for the jury, and the appellate court will not interfere with it on the ground of excessiveness, unless it clearly appears that such verdict was the result of improper motives or conduct on the part of the jury. Hanlon v. Railroad, 104 Mo. 381; Voegeli v. Marble and Granite Co., 56 Mo.App. 678; Lalor v. McDonald, 44 Mo.App. 439; State ex rel. v. Gage, 52 Mo.App. 464; Gurley v. Railroad, 120 Mo. 211; Nichols v. Nichols, 147 Mo. 387.
--This is a suit by the plaintiff against the defendants for alienating the affections and depriving her of the assistance and society of her husband, John Rainey Love.
The facts disclosed were, that on the 13th day of April, 1900, the plaintiff and said John Rainey Love were married in the county of Maries, Missouri, and that they cohabited as husband and wife for a short time, when he abandoned the plaintiff and left the State. The evidence tended to show that the marriage was compulsory upon the husband. At the time of the marriage the plaintiff was about seventeen and the husband about nineteen years of age. It was shown that the former lived with her mother, a widow woman, and that the latter lived with his parents, the defendants herein. It is also to be inferred from the evidence that plaintiff's relatives were laboring under the belief that she had been seduced by young Love; and that evidently acting under such belief, W. E. Heady, and another brother of plaintiff, went to defendants' home and made a charge to that effect to John E. Love, in the presence of the son, John Rainey Love, and demanded that the latter marry their sister; that defendant refused to give his consent to such marriage, whereupon said Heady declared that if something was not done at once he would have the son arrested immediately. However, it appears that in the afternoon of the same day, young Love, in company with the said Heady, obtained a license for the marriage by means of an order alleged to have been signed by his father authorizing the issuance of the same, and that later on in the evening said John Rainey Love and the plaintiff herein were married and cohabited together as man and wife until the following morning, when the former returned to the home of his parents. It is claimed by defendants that said written order purporting to be signed by John E. Love and by means of which said marriage license was secured, was a fictitious or bogus order. The plaintiff testified that after the night of the marriage her husband visited her about seven times; and that he would come in the evening and stay with her until about three o'clock the next morning when he would go home to his parents in order to prevent them from having knowledge that he was staying with her; but that, finally, the husband, on the 9th day of July, 1900, left the State and wholly abandoned plaintiff. She also testified that her husband was kind and affectionate to her after their marriage; and that after his disappearance a child was born to her, of which he was the father. Also, that after her husband had abandoned her she met defendant John E. Love on the highway and spoke to him, calling him "Mr. Love," when he said to her: "Well, you and Rainey is married, are you?" to which she answered: "Yes, sir," whereupon he said: "Well, I sent Rainey off; he shan't live with you." And it was further shown by a witness in the case that shortly prior to the husband's departure from the country he had heard the defendant, Cynthia A. Love, say to her son, John Rainey Love, that she would give him $ 1,500 if he would leave.
On the trial the plaintiff, over the objections of the...
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