McLery v. McLery

• Decision Date: 10 February 1925
• Citation: 186 Wis. 137,202 N.W. 156
• Parties: MCLERY v. MCLERY.
• Court: Wisconsin Supreme Court

186 Wis. 137

202 N.W. 156

MCLERY

v.MCLERY.

Supreme Court of Wisconsin.

Feb. 10, 1925.

Appeal from Circuit Court, Jefferson County; George Grimm, Judge.

Action by Mrs. Ralph McLery against Ida Effie McLery and another. Judgment for plaintiff, and the named defendant appeals. Reversed, with directions.

This was an action for damages for alienation of the affections of plaintiff's husband by the defendant. Judgment was had for the plaintiff on a verdict of a jury for $7,000 and costs. Defendant, Ida Effie McLery appealed.Easton Johnson, of Whitewater, and Jeffris, Mouat, Oestreich, Avery & Wood, of Janesville, for appellant.

Skinner & Thauer, of Watertown (Marvin W. Wallach, of Chicago, Ill., of counsel), for respondent.

CROWNHART, J.

The appellant claims error on the trial below in the admission of incompetent testimony and the instructions to the jury thereon.

[1][2] The action was brought against the defendant and her sister, Carrie Lumsden, but the defendant Lumsden was not served and did not appear. On the trial the plaintiff was permitted to prove declarations of Carrie Lumsden, to the effect that she was the agent of defendant with reference to ordering plaintiff out of the residence of plaintiff and her husband on the day of their final separation. This occurrence, if occasioned by defendant's connivance, was a very material factor in establishing plaintiff's cause of action. The plaintiff testified in this respect, over the objection of the defendant:

“She said that she represented Mrs. Joe McLery in her absence--she couldn't be there on account of my father-in-law's illness--and that I had to leave the house immediately. * * * That I was worrying my husband to his grave, and that I was a millstone around his neck, dragging him down until he had lost all his friends, and his position in the neighborhood amongst the neighbors; that I called myself a nurse, but she considered me a very, very low woman; and that I had to go out of the house immediately. I told her I didn't have to get out of the home. She said I was mistaken--that the home belonged to Mrs. Joe McLery; and I said not as long as my father-in-law lived. She said, ‘Your father-in-law is a pauper, and his wife has every nickel that he owns, and she will never even let you stay overnight in the house.’ I appealed to my husband, and he simply turned his back. He seemed to feel rather badly about it. I said, ‘I have no home; I have no money; where am I going to go?’ She said she didn't care where I went; that they had allowed me to stay there long enough, the way I had been going and conducting myself, and that I had always professed an affection for my father-in-law, and that I wouldn't come home and take care of him. I told her the circumstances under which I had worked, the place, and she laughed at me, and said she didn't believe me; that I ought to come anyway; I should have come home to him if I cared for either him or my husband. I told her I couldn't come, explained how it was; but she wouldn't let me explain, just urged me to get out of the house, to leave immediately. She called me a pauper; she said I had nothing, I was just an ordinary working girl, and that they had been very good to put me into a home and the social position they had at that time. She also said that I should be ashamed of myself and the way I had conducted myself while in that home. She said, ‘every stick and every beam of this house belongs to my sister; I am here to represent her and you must get out.’ ”

The court gave the following instruction with reference to this testimony:

“The acts of a duly authorized agent are in law imputed to his principal. Testimony has been given to the effect that Mrs. Lumsden ordered the plaintiff out of the house and that she claimed to be authorized thereto by the defendant. The truth of that testimony is denied by both Mrs. Lumsden and Mrs. Joseph McLery, the alleged agent and principal. But, even if true, such testimony does not in law establish agency. It is at most only evidence of what Mrs. Lumsden said, but not that the agency in fact existed. Agency may be established by the testimony of the agent or the principal, or as the reasonable inference from the acts of the parties in connection with the attending circumstances, but not by mere proof that some one claimed to be the agent of another.”

We have searched the record in vain to find the “acts of the parties in connection with the attending circumstances” from which a reasonable inference could be drawn that Carrie Lumsden was in fact the agent of defendant at the time and for the purpose of the transaction in question. Defendant's husband was very ill--he died January 8th following--and Carrie Lumsden was staying with defendant helping her care for the sick man. One may judge from the evidence that she was forward and assertive in her manner. Plaintiff and her husband were having a domestic altercation of serious proportions at their residence, when Carrie Lumsden, the aunt, appeared on the scene, with the result disclosed by the quoted evidence, assuming the accuracy thereof. Nothing else appears to disclose agency and the fact of such agency is denied by defendant, her son, and Mrs. Lumsden. However, assuming the accuracy of the testimony of plaintiff, and the attendant circumstances, it falls far short of proof of agency.

Counsel for plaintiff cites the rule from 2 Corp. Jur. 939 and 945, as follows:

“While the declarations of an alleged agent are themselves incompetent to prove agency, if the agency is otherwise prima facie proved, they become admissible in corroboration, where they constitute a part of the res gestæ and were made at the time of the transaction in question. Thus, where the agency has been established by independent evidence, the declarations of the agent are competent to show that he acted as agent and not on his individual account, or to show the nature and extent of his authority.” 2 Corp. Jur. p. 939.

“As a general rule the fact of agency, or the extent and scope thereof, cannot be established by proof of the acts of the pretended agent, in the absence of evidence tending to show the principal's knowledge of such acts, or assent to them. But where there is further evidence that the alleged principal authorized or knew of the acts of the alleged agent and made no objection, or where the acts are of such a character, and so continued, as to justify an inference that the principal knew of them, and would not have permitted the same if unauthorized, the acts themselves are competent evidence of agency.” 2 Corp. Jur. p. 945.

The rule, as above stated, seems to be an accurate statement of the law as held by this court. Somers v. Germania Nat. Bank, 152 Wis. 210, 138 N. W. 713;McCune v. Badger, 126 Wis. 186, 105 N. W. 667;Roebke v. Andrews, 26 Wis. 311;Davis v. Henderson, 20 Wis. 520;McDonell v. Dodge, 10 Wis. 106.

None of the conditions applicable to the exceptions as to the general rule existed in this case. There was no prima facie proof of agency, no independent evidence of agency, no evidence tending to show defendant's knowledge of Mrs. Lumsden's acts, and no proof of authorization of her acts. The rule is further elaborated, with citation of authorities, in 22 Corp. Jur. 376, as follows:

“Unless the agency is already apparent, or is admitted, or unless the statement has been ratified, the relation of agency between the declarant and the person against whom it is sought to use his admission must be established by affirmative evidence other than the declaration or statements of the alleged agent. Such evidence may be either direct or inferential, but the agency of a declarant cannot be shown by the statement of another person claiming to be an agent of the party sought to be charged, but whose authority is not shown to extend to binding his principal by such a statement.”

The instruction of the court did not withdraw the improper testimony from the consideration of the jury, but, on the contrary, it left the jury to infer agency from said testimony and other attendant facts and circumstances. The testimony was highly prejudicial to the defendant, and should have been withdrawn from consideration by the jury in direct and positive language. Such an instruction was asked for in writing by the defendant, but not given. For this error of the court the cause must be reversed.

The appellant contends the plaintiff failed to make out a case and judgment should be reversed, with directions to dismiss the complaint, and this brings us to the merits of the action.

[3] The plaintiff in the action was required to establish, by a preponderance of the evidence to a reasonable certainty, two propositions in order to recover: (1) That defendant, by her acts, was the controlling cause of the alienation of the affections of plaintiff's husband from her; and (2) such acts were the result of malice or bad intent on the part of the defendant toward plaintiff.

[4] When such acts are performed by a stranger they are presumed to be malicious, but when performed by persons near of kin, especially in the relation of parent and child, the presumption is reversed. In Baird v. Carle, 157 Wis. 565, 147 N. W. 834, this court said:

“It was held by this court in Jones v. Monson, 137 Wis. 478, 488, 119 N. W. 179, that parents have the right to advise their married daughters to discontinue their marital relations with their husbands if they honestly believe that conditions are such as to demand separation, provided they act in good faith and have substantial reasons for believing that the advice given is proper. It is also held in that case that if separation ensued and the husband brings an action to recover damages for the alienation of the affections of the wife, the burden is on him to show that the advice which tended to bring about the separation was given maliciously and in bad faith. The weight of authority elsewhere is to the effect that this rule also...