McKay v. McKay
| Decision Date | 22 November 1915 |
| Citation | 182 S.W. 124,192 Mo.App. 221 |
| Parties | VEDA McKAY, Respondent, v. FRANK P. McKAY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Sullivan Circuit Court.--Hon. Fred Lamb, Judge.
AFFIRMED.
Judgment affirmed.
Calfee & Painter, J. M. Wattenbarger and E. B. Fields for respondent.
Scott J. Miller for appellant.
--Plaintiff sued for the recovery of both actual and exemplary damages for the alienation of the affections of her husband by defendant, his foster father. The jury found for plaintiff assessed her actual damages at $ 3000 and exemplary damages in the sum of $ 1500, but on the hearing of the motion for a new trial plaintiff (moved thereto by expressions from the court) entered a remittitur of $ 2000, whereupon the motion was overruled, judgment was rendered for plaintiff for $ 2500, and defendant appealed.
Plaintiff at the age of fifteen, and Homer McKay, at the age of twenty, were married in Sullivan county in January, 1912, and lived together until November, 1914, when they separated. Plaintiff, with their two children, returned to her father's house and Homer continued to reside with defendant with whom he and plaintiff had been living. The evidence of plaintiff tends to show that defendant, actuated by virulent hatred, heaped the grossest indignities and insults upon her in the presence of her husband who not only exhibited no resentment or purpose to protect her, but passively acquiesced in such treatment, finally consented to their separation and her enforced return to her father and chose to remain with defendant.
Further it shows, and this fact virtually is conceded, that after the separation and with the aid of insincere protestations that he was securing means to establish a new home for himself and plaintiff and their children, Homer, prompted by defendant, induced her to join in the execution of a deed to defendant, conveying forty acres of land Homer had inherited from his foster mother, on the false representation that defendant had bought the land at a fair valuation. Defendant gave Homer a check in pretended payment of the purchase price but the check was not presented to the bank and afterwards was returned to defendant.
The petition alleges "that the defendant, well knowing that plaintiff and Homer McKay were husband and wife, and that they were living happily together, enjoying the aid, support, companionship, society and affection of each other, wrongfully, wickedly and maliciously acted with the wrongful, wicked and malicious intent to cause plaintiff's said husband to cease to love her, and to leave and abandon her, and to cease living with plaintiff as her husband, and to deprive plaintiff of the love, aid, support, companionship, society, protection, and affection of her said husband. That for a long period of time, to-wit, for several months, defendant pursued this wicked, wrongful and malicious course toward plaintiff and her said husband until finally on or about the---day of November, 1914, the defendant pursuant to his said wicked, wrongful and malicious intent, did wrongfully, wickedly and maliciously entice, influence and induce plaintiff's said husband to leave and abandon her; and her said husband, being influenced by and acting under said wrongful, wicked, and malicious enticement, influence and inducement of the defendant, did leave and abandon her and being influenced by and acting under said wrongful, wicked and malicious enticement, influence and inducement has ever since remained away from and separate and apart from her.
"And ever since said abandonment, the defendant has wrongfully, wickedly and maliciously detained and harbored plaintiff's said husband and has kept him separate and apart from her, and has by his said wrongful, wicked and malicious acts and conduct deprived plaintiff, and still deprives her, of the aid, support, companionship, society, protection and affection of her said husband."
In the first instruction given at the request of plaintiff the jury were told:
This instruction is criticized on the ground that it is reversible error for an instruction, which assumes to cover the whole case and to direct a verdict, to refer to the petition for the essential facts upon which the right of recovery is predicated.
Where the evidence, in its phase most favorable to the pleaded cause, is sufficient to warrant a recovery but falls short of sustaining all of the allegations of the petition, it is reversible error to refer the jury to the petition for the facts of the case, since the effect of such practice would be to abolish evidentiary limits and restrictions and to allow the plaintiff to recover upon alleged but unproved facts. "It was the duty of the court to tell the jury what are the essential facts to be found under the pleadings." [Procter v. Loomis, 35 Mo.App. 482; McGinnis v. Railroad, 21 Mo.App. 399; Remmler v. Shenuit, 15 Mo.App. 192; Edelamn v. St. L. Trans. Co., 3 Mo.App. 503; Comston v. Railroad, 25 Mo.App. 619; Webb v. Carter, 121 Mo.App. 147, 98 S.W. 776.] But this rule does not obtain in instances where the allegations are no broader than the proofs (Remmler v. Shenuit, supra), for the obvious reason that in such case the reference to the petition cannot be said to have enlarged the cause defined by the evidence. Unless reference to the petition has the effect of broadening the evidentiary issues, it should not be classed as prejudicial and, therefore, reversible error, though it is a practice likely to mislead the jury and for that reason should be avoided.
The allegations of the petition in hand are general, not specific, and contain no fact not adequately supported by proof. There is no room for the contention that there is any discrepancy between allegation and proof. The field of the one is as broad as the other and no broader and an instruction which referred to the petition for the facts necessarily would mean the same as one which referred only to the evidence. Moreover, the instruction definitely states the ultimate facts which would entitle plaintiff to recover in practically the same form of their averment in the petition. It may be accurately said that the jury were not relegated to the petition but were told what facts, if found, would warrant a verdict for plaintiff. The addition of the words "as charged in the petition" neither added to nor subtracted from the stated hypothesis and, therefore, was not prejudicial. [State v. Scott, 109...
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