McCaslin v. Mullins

• Decision Date: 23 May 1929
• Docket Number: 4569
• Citation: 17 S.W.2d 684
• Parties: McCASLIN v. MULLINS.
• Court: Missouri Court of Appeals

17 S.W.2d 684

McCASLIN v. MULLINS.

No. 4569

Court of Appeals of Missouri, Springfield

May 23, 1929

Appeal from Circuit Court, Lawrence County; Charles L. Henson Judge.

Suit by W. W. McCaslin against Conway Mullins. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

James E. Sater, of Monett, for appellant.

Emory Medlin, of Monett, and H. H. Bloss, of Aurora, for respondent.

OPINION

SMITH J.

The respondent, hereinafter called the plaintiff, filed a suit against the appellant, hereinafter called the defendant wherein he sought damages for criminal conversation, alleging that he was lawfully married to Dovey McCaslin in 1914 and that he continued to live with her and she with him sustaining the relation of husband and wife, until August 5, 1926; that the defendant, on or about the __-- day of July and at divers times thereafter, did wickedly and wantonly debauch and carnally know Dovey McCaslin, and on August 5, 1926, persuaded the said Dovey McCaslin to leave the house of plaintiff and to leave his three infant sons, thus depriving the plaintiff of the comfort and enjoyment of his lawful wife and her services rendered in the care of the said children, all to plaintiff’s damage in the sum of $5,000, and he further prayed that defendant be caused to pay $5,000 as punitive damages.

Defendant filed a general denial, and further answered that, if the wife of plaintiff lost her affection for the plaintiff, it was due to the fault of plaintiff and his treatment towards her, and not by any act, persuasion, or inducement on the part of defendant, and further answered that the wife of plaintiff secured a divorce from him on account of the indignities offered her by the plaintiff. The record fails to show any reply filed, but it was tried on the theory that one was filed.

The defendant contends that the petition attempts to state a cause of action for damages for alienating the affection of his wife; the plaintiff contends that it is purely an action on the issue of criminal conversation. The petition is drawn so that there is some ground for a person to take either position. No motion to strike out any part of the petition was filed, and none filed to require the plaintiff to elect on which theory he would stand, yet it appears to be more of a petition for damages for criminal conversation.

This cause will have to be reversed and remanded on account of an instruction given, which will be discussed later. It is suggested, however, that since there will have to be another trial, and since the plaintiff insists that it is an action on account of criminal conversation, that an amendment to the petition be had taking out that part of the petition which led the defendant to believe it was an action for alienating the affections of the plaintiff’s wife. If this...