McAllister v. McAllister

• Decision Date: 03 July 1922
• Docket Number: 10064.
• Citation: 72 Colo. 28,209 P. 788
• Parties: McALLISTER et al. v. McALLISTER.
• Court: Colorado Supreme Court

209 P. 788

72 Colo. 28

McALLISTER et al. v. McALLISTER.

No. 10064.

Supreme Court of Colorado, En Banc.

July 3, 1922

Rehearing Denied Oct. 2, 1922.

Error to District Court, Boulder County; Neil F. Graham, Judge.

Action by Eugenie McAllister against Ira T. McAllister and wife. The wife died, and the cause proceeded against the named defendant. After judgment for plaintiff, the named defendant died, and Daniel E. McAllister and others, as his special administrators, were substituted for him, and bring error.

Affirmed.

Martin, Newcomer, Fitzgerald & Tinglof, of Boulder for plaintiffs in error.

John T Bottom, of Denver, for defendant in error.

BURKE J.

In 1907 Ira T. McAllister and Elizabeth, his wife, resided in Boulder, Colo. June 18 of that year their son, Clarence Milo McAllister married defendant in error (hereinafter referred to as plaintiff) at Springfield, Mo. Shortly thereafter plaintiff and her husband took up their residence in Boulder in the same block with, and in a house belonging to, said Ira T. McAllister (hereinafter referred to as defendant), and a daughter, Helen E., was there born to them May 17, 1909. After living together about six years a separation took place lasting about one year, followed by a reunion and a final separation in October, 1915, at which time the husband went to California. Plaintiff began this action against defendant and his wife in November, 1917. The complaint charged alienation of the affections of plaintiff's husband, and the prayer was for damages in the sum of $100,000, $50,000 actual and $50,000 exemplary. Elizabeth McAllister died before the trial, and the cause proceeded against defendant. Verdict for plaintiff in the sum of $9,000 was set aside by the court, and a second trial resulted in a verdict for her in the sum of $15,000. Thereafter defendant died, and this writ is prosecuted by three of his sons as special administrators, to review the judgment entered upon that verdict.

Trial was begun to a jury April 21, 1920, and the verdict was returned six days thereafter. One hundred and ten alleged errors are assigned. Most of them justify no comment. Of the points argued eight will be examined: (1) That instruction No. 7 was erroneous and prejudicial; (2) that evidence of defendant's financial worth was improperly admitted; (3) that instructions numbered 8, 13, and 17 were erroneous and prejudicial; (4) that there was no evidence of malice--hence no support for exemplary damages; (5) that communications between plaintiff and her husband were offered in evidence in violation of the statute; (6) that evidence relating to the will of defendant's wife was improperly admitted; (7) that the evidence as a whole was insufficient to justify the verdict; (8) that the verdict was excessive.

1. Instruction No. 7 reads as follows:

'Malice may be implied when there is a deliberate intention to do a grevious wrong without legal justification or excuse. The very essence of malice is a disposition or willingness to do a wrongful act greatly injurious to another, and wherever an act is intentionally and willfully done malice shall be implied, unless the evidence shows that the party committing the act or acts acted from some innocent or proper motive.' This instruction was objected to because: (a) An implication of malice attaches only to a wrongful act; (b) the act must be done with a wrong motive, and, in case of exemplary damages, with a reckless disregard of plaintiff's rights and feelings; (c) implied malice should be confined to compensatory damages.

It is only by dissecting this instruction and attacking it piecemeal that any force is given to the argument in support of those objections. The instruction must be considered as a whole. The court not only advised the jury that the act must be wrongful, but that it must be a 'grievious wrong.' One who so acts without an 'innocent or proper motive' acts from a wrong motive. If the act is done with malice, exemplary damages must be awarded. Section 2067, R. S. 1908. Such malice need not be admitted, it may be implied, and the jurors are so advised. Thus a careful reading of No. 7 is a complete answer to the objections. It is urged that this instruction, in substance, is disapproved by this court in French v. Deane, 19 Colo. 504, 509, 36 P. 609, 24 L.R.A. 387, and in Williams v. Williams, 20 Colo. 51, 64, 37 P. 614. In each of these cases, however, the jury was told that malice was an implication of law, whereas it is an implication of fact, and the jury herein was so advised.

It should be noted here that the question of exemplary damages was submitted to the jury, with no direction to it to find separately on exemplary and compensatory damages, and no request by either party so to do.

2. Evidence of defendant's financial worth was admitted, as stated by the court, 'for any purpose for which it may be applicable.' It was applicable to the question of exemplary damages.

Courvoisier v. Raymond, 23 Colo. 113, 118, 47 P. 284. No obligation rested upon the court, as each piece of evidence came in, to advise the jury of the particular branch of the case to which it applied. Such is, generally speaking, the province of instructions. If counsel for defendant desired an instruction specifically limiting this evidence to the question of exemplary damages, such a request should have been made. The record discloses none.

3. The objections to instructions numbered 8, 13, and 17, like those to instruction No. 7, are entirely dependent for their force upon piecemeal consideration, without reference to other instructions. This is not a case where an erroneous statement of the law is given in one instruction and a correct statement thereof in another, as in Walsh v. Henry, 38 Colo. 393, 398, 88 P. 449, but where a proposition not entirely covered in one instruction is completed in another, or where one instruction is necessary to the interpretation of another.

4. The contention that there is no evidence of malice is covered in considering the whole evidence under point '7.'

5. Certain communications between plaintiff and her husband were admitted which it is urged violated the prohibition of section 7274, R. S. 1908, as amended L. 1911, p. 679. The portion of the section in question reads:

'A husband

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