McCoy v. Hill
| Decision Date | 18 December 1922 |
| Citation | 246 S.W. 582,296 Mo. 135 |
| Parties | ALBERT McCOY, Appellant, v. W. E. HILL |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court. -- Hon. Sterling H. McCarty Judge.
Reversed and remanded.
Hall & Billings and McKay & Meddling for appellant.
(1) It was error to admit testimony as to the reputation of the Baker girls for morality and chastity. DeFord v Johnson, 177 S.W. 577; DeFord v. Johnson, 152 Mo.App. 209; Scheffler v. Robinson, 159 Mo.App. 527. (2) It was error to permit testimony to be given relative to the visits of the Baker girls to the home of the plaintiff. Authorities supra. (3) It was error to admit testimony that defendant was seen talking more frequently to the Baker girls than to plaintiff's wife. Authorities supra. (4) It was error to admit allegations of Mrs. McCoy's divorce petition. McKay v. McKay, 192 Mo.App. 143; DeFord v. Johnson, 152 Mo.App. 209; Fuller v Robinson, 230 Mo. 22; DeFord v. Johnson, 177 S.W. 577; 11 Cyc. 1623. (5) It was error to admit testimony that there were no objections made to defendant coming to the McCoy house. Hearsay. Wife incompetent against husband. Fuller v. Robinson, 230 Mo. 22; McKay v. McKay, 192 Mo.App. 143; Wagner v. Wagner, 204 S.W. 390. (6) It was error to admit testimony of defendant as to what the wife of the plaintiff told him. Hearsay. Wife incompetent. Scheffler v. Robinson, 159 Mo.App. 527; McKay v. McKay, 192 Mo.App. 143; Wagner v. Wagner, 204 S.W. 390. (7) Defendant's Instruction 7 is bad and constitutes reversible error. It is a vicious comment upon the evidence, assumes the existence of facts not in evidence, and does not include the ultimate facts, is not based upon any alleged facts which would constitute a defense to the issues made by the second and third counts of the petition and the evidence thereunder, namely, criminal conversation, and enticement. Riffe v. Wabash, 207 S.W. 81; Ganey v. Kansas City, 259 Mo. 663; Scheffler v. Robinson, 159 Mo.App. 527; DeFord v. Johnson, 152 Mo.App. 209; DeFord v. Johnson, 177 S.W. 577; Modiste v. McPike, 74 Mo. 636; Linden v. McClintock, 187 S.W. 82; Gunn v. Hemphill, 218 S.W. 978. (8) Instruction 8 is bad and constitutes reversible error. It is a reiteration of the same errors emphasized pointed out in No. 7 and attempts to invoke the same misapprehended matters as a defense. Authorities supra. (9) Instruction 11 is reversible error. It misapprehends all the elements of the actions for criminal conversation and enticement, and harboring, and required that the jury find plaintiff's wife has affection for her husband, that the plaintiff's wife acquired an infatuation for defendant, that defendant inspired said infatuation by intentional wrong, and caused Mrs. McCoy's affection for her husband to cease and to be transferred to defendant, before plaintiff could recover in this action. It also told the jury proof that defendant had improper relations with plaintiff's wife was not sufficient to warrant a recovery. This was a suit for criminal conversation and enticement. However, this instruction as given under the testimony in this case would be error if the action had been for alienation of affections. DeFord v. Johnson, 152 Mo.App. 209; Scheffler v. Robinson, 159 Mo.App. 527; Modiste v. McPike, 74 Mo. 636; Surbeck v. Surbeck, 208 S.W. 645; Nichols v. Nichols, 147 Mo. 387; DeFord v. Johnson, 177 S.W. 577.
James A. Bradley, Orville Zimmerman, Mayes & Gossom and McKay & Jones for respondent.
(1) All the testimony was proper. Assignments 1, 2 and 3 were proper under the pleadings and the defense, and in mitigation of damages, and as to 2 was proper cross-examination of plaintiff and appellant. The evidence against which assignment 5 is directed was admissible, but even if inadmissible, it would be harmless error, in view of the fact that counsel for appellant admitted in open court all the question sought to prove; and for the further reason that it could not have effected the result. The evidence complained of in assignment 6 was admissible as a proper explanation by defendant of the "wood transaction," brought into the case by appellant. State v. Baugh, 217 S.W. 281; Edison v. Railway Co., 209 S.W. 577; Sec. 1513, R.S. 1919. (2) There was no error in the giving of instructions numbered 7, 8, 9, 10 and 12 for respondent. Respondent concedes that his instruction numbered 11 was erroneous in that said instruction required plaintiff's wife to have affection for him; in this respondent's instruction numbered 11 was erroneous, but same is harmless error in this cause, there being no dispute on the question of affection. Sec. 1513, R.S. 1919; Fuller v. Robinson, 230 Mo. 50; Beall v. Railway Co., 228 S.W. 837; Liljegren v. Railway Co., 227 S.W. 929; Lester v. Hugley, 230 S.W. 356; Leimbach v. Railway Co., 227 S.W. 849; Lass v. Railway Co., 233 S.W. 71; Lampe v. Railway Company, 232 S.W. 255; DeFord v. Johnson, 152 Mo.App. 209; Scott v. Scott, 16 L. R. A. (N. S.) 742; Lilligren v. Detective Agency, L. R. A. 1917B, 679. (3) The second count of appellant's petition does not declare upon criminal conversation, but declares upon a cause of action for alienation of affections, aggravated by carnal knowledge; and with such debauchery as the means or methods of alienation. There is a marked distinction between actions for alienation of affection and for criminal conversation. DeFord v. Johnson, 152 Mo.App. 209; Scheffler v. Robinson, 159 Mo.App. 527; Merrit v. Cravens, L. R. A. 1917F, 941. The charge made in this case is one that is easily made and hard to disprove. It is not necessary that there be direct testimony upon each issue submitted to the jury, but both parties have a right to submit to the jury questions of fact that may be inferred as reasonable inferences from the other facts in evidence. Counsel for appellant recognized this rule in securing his requested instruction numbered three. Linden v. McClintock, 187 S.W. 82; Hartpence v. Rogers, 143 Mo. 637. (4) Appellant will be bound in this court by the theory adopted in the trial below. Keele v. Railroad, 258 Mo. 75; Lumber Co. v. Carroll, 255 Mo. 361.
The cause of action alleged in the two counts of the petition herein, substantially stated, is that defendant, without the knowledge or consent of plaintiff, did "wrongfully, wantonly and wickedly debauch and carnally know" the wife of plaintiff, "thereby alienating and destroying the affection" which she had for plaintiff, and that defendant "wickedly, wrongfully and maliciously enticed away" the wife of plaintiff, and "has constantly ever since detained and detains and harbors" her against the consent of plaintiff. The answer was a general denial as to both counts. The jury returned a verdict for defendant. From a judgment rendered thereon plaintiff appeals.
The evidence discloses that plaintiff married Ever McCoy in 1915, she being his third wife; that he had a son by a former marriage, and that she had two children by a former marriage, a son and a daughter; that plaintiff and his wife lived together in the town of Cardwell, Dunklin County, Missouri, from the time of their marriage until April 8, 1919; that defendant lived in the same town and was the marshal thereof; that plaintiff was employed in a cotton gin located about three hundred yards distant from his home; that on April 8, 1919, plaintiff's wife left his home and moved to a house in Cardwell owned by defendant.
Mrs. Odell Miller, a witness for plaintiff, testified that from April, 1918, to January, 1919, she lived across the street from plaintiff's home, and saw defendant visit there during plaintiff's absence while his wife was at home. Describing such visits the witness stated: "When defendant came around early in the morning in his car and honked his car as he turned the corner and go on, sometimes he would stop, but generally he would stop the car pretty close to the fence and the door would come open and Ever would stick her head out and they would talk a few minutes and then he would go on to town, I suppose -- anyhow, it wouldn't be but about thirty minutes until you would see him coming down the railroad, the back way, and he would go in the back way through the woodshed, but of course I couldn't see him go on the back porch; I lived on the corner and I couldn't see his back porch."
Witness further testified that after defendant disappeared from sight in the woodshed she would not see him leaving again sometimes until about noon, and that defendant continued his visits for nine months.
The deposition of Mrs. Tennie Warbritton was offered in evidence on behalf of plaintiff. She testified that for three years she lived two lots from plaintiff's home; that she saw defendant go there two or three times a week for eighteen months before plaintiff and his wife separated; that she saw defendant "slow down his car and Ever McCoy come to the side door and talk to him a few minutes, and he went on, and in about a half hour he comes back afoot and entered the woodhouse, and saw us watching him, and when my back was turned he begun to run from the woodhouse to the back gallery;" that she saw defendant on one occasion leave the premises and return later "with two packages in his hands and went through the side gate and side door into the house, and that this happened about a week before Mrs. McCoy moved to Hill's house."
The defendant testified that he went to plaintiff's home "once or twice or perhaps three times a week" for the purpose of "meeting the Baker girls who lived the second door from the McCoy home;" that he usually passed plaintiff's home and "would stop and have Mrs. McCoy to get the girl over there;" that he ...
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