Mckee v. Mckee

• Decision Date: 23 April 1935
• Docket Number: Case Number: 24083
• Citation: 1935 OK 466,43 P.2d 1041,172 Okla. 35
• Parties: McKEE v. McKEE
• Court: Oklahoma Supreme Court

1935 OK 466

43 P.2d 1041

172 Okla. 35

McKEE v. McKEE

Case Number: 24083

Supreme Court of Oklahoma

Decided: April 23, 1935

Syllabus

¶0 1. HUSBAND AND WIFE - Action for Alienation of Husband's Affections - Petition Held to State but One Cause of Action.

A petition in a suit for damages for alienation of affections which alleges a series of events and continuous course of conduct on the part of the defendant, running through a period of years, and which alleges two acts of separation between plaintiff and her husband, but which seeks damages arising from the last separation alleged to have been caused by the acts of the defendant, states but one cause of action.

2. SAME - Petition Held to State Cause of Action Against Father-in-Law.

Where a petition in an action for damages for alienation of affections contains the necessary allegations of the marriage of plaintiff and her husband and contains allegations alleging acts and statements on the part of the defendant, and threats on the part of the defendant, connected with a demand that plaintiff let her husband, the son of defendant, alone, and which petition alleges the acts were malicious and caused plaintiff to suffer the loss of affection, comfort, counsel, and consortium of her husband, the same states a cause of action, and a general demurrer thereto should be overruled.

3. PLEADING - Sufficiency of Petition as Against General Demurrer.

As against a general demurrer, a petition must be liberally construed and its allegations accepted as true, and if the pleading states any facts which entitle the pleader to relief under the law, a general demurrer should not be sustained thereto.

Appeal from District Court, Kay County; John S. Burger, Judge.

Action by Eunice McKee against Sam H. McKee. From order sustaining demurrer to petition and dismissing plaintiff's action, plaintiff appeals. Reversed.

John H. Todd (Moss, Breckinridge & Young, on the brief), for plaintiff in error.

Felix Duvall and Ridings & Drennan, for defendant in error.

PER CURIAM.

¶1 This action is an appeal from the district court of Kay county, Okla. The plaintiff in error, Eunice McKee, was plaintiff below, and the defendant in error, Sam H. McKee, was defendant in the court below, and the parties will be referred to herein as plaintiff and defendant in the respective positions which they occupied in the trial court.

¶2 The second amended petition alleges in substance that plaintiff and one Howard C. McKee, son of the defendant in error, Sam H. McKee, were married March 19, 1926; that a son was born as the result of said marriage; that plaintiff in error and Howard McKee lived happily together until the latter part of the year 1927. The petition further alleges that defendant, Sam H. McKee, was wealthy, furnished plaintiff and her husband with a home, as well as large sums of money for their support. That during the year 1927, defendant experienced a change of feeling towards plaintiff and caused her husband, Howard McKee, to demand of plaintiff that she secure a divorce from him because his father, defendant in error, was threatening to cut off his allowance and withdraw his support; that such an action was filed, and on the 2nd day of October, 1928, plaintiff and her husband, Howard McKee, were granted a divorce, and plaintiff was awarded $10,000 and certain personal effects as a property settlement, which award was paid by defendant, Sam H. McKee.

¶3 The petition further alleges that prior to the entering of the judgment of divorce, and subsequent thereto, plaintiff and her husband, Howard McKee, entered into an agreement that they would live together as husband and wife, and that they entered into a common-law marriage, and did continue to live together until a short time prior to the month of July, 1930, the exact date being unknown to the plaintiff, when the defendant thereupon came to her and demanded of her that she let his son, Howard McKee, who was her husband, alone; that if she did not do so, he would cause her serious trouble and send her to the penitentiary, and that he would never let up until he took Howard away from her, but that plaintiff and her husband, Howard McKee, continued to live together until July, 1930, at which time the said Howard McKee did leave her, and that same was caused by the acts and conduct of the defendant in this case, and that by reason thereof she suffered damages on account of the alleged alienation of affections and loss of society and consortium of her said husband.

¶4 The petition also states that during the period of time plaintiff lived with her husband, Howard McKee, under the arrangement of their common-law marriage, they suffered from fear that the defendant would find out and ascertain the facts concerning such common-law marriage arrangement, but throughout the petition it appears from the allegations thereof that defendant, Sam H. McKee, evidently knew of such common-law marriage arrangement, and threatened her, as above set out, if she did not leave her husband, Howard McKee, the son of the defendant, alone.

¶5 Attached to the petition is a copy of the marriage settlement contract entered into at the time of granting the divorce, which purports to release her husband, Howard McKee, and the members of his family, without naming them, from further liability to her in consideration of the property settlement.

¶6 A motion to strike was filed, and a motion to separately state and number causes of action, which were both overruled. The second amended petition was filed in the district court of Kay county, Okla., on May 2, 1932. Subsequently, a demurrer to the second amended petition was filed June 15, 1932, assigning three grounds for demurrer, the first being improper joinder of causes of action; the second, that said amended petition was not sufficient to constitute a cause of action; and third, the ground of the demurrer being that the cause of action, if any, was barred by the statute of limitations. On the 15th day of June, 1932, the trial court sustained the demurrer on the ground that the petition did not state facts sufficient to constitute a cause of action. Plaintiff elected to stand upon the petition, and brings this case to this court for review.

¶7 The petition in error contains three assignments of error, which are, in effect, the same thing, to wit: That the court erred in sustaining the demurrer of the defendant in error to the second amended petition of the plaintiff in error, and said three assignments will be treated as but one assignment of error.

¶8 Evidently the court did not hold that the petition contained several causes of action, and for that reason was a misjoinder of causes of action, for no order is made by the court so finding and permitting the plaintiff to file several petitions on her several causes of action. This is required when a demurrer is sustained on account of a misjoinder. Section 204, O. S. 1931, is as follows:

"When a demurrer is sustained, on the ground of misjoinder of several causes

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