McRae v. Robinson
Decision Date | 29 November 1926 |
Docket Number | 25779 |
Citation | 145 Miss. 191,110 So. 504 |
Court | Mississippi Supreme Court |
Parties | MCRAE et al. v. ROBINSON. [*] |
. (Division A.)
1. HUSBAND AND WIFE. Husband, suing wife's parent for alienation of affection must show that parent, in doing acts resulting in abandonment, was actuated by malice.
Husband in suing wife's parent for alienation of affection, must show, not only that defendant has actually done acts charged and that they have resulted in abandonment by wife, but must also show that parent in doing so was actuated by malice.
2. HUSBAND AND WIFE. Husband suing wife's parent for alienation of affection must overcome presumption that parent acted for child's best interest.
Presumption in suit by husband against wife's parent for alienation of affection, is that parent acted for best interest of child, and husband has burden of showing that parent was prompted by malice.
3. HUSBAND AND WIFE. Instruction, in husband's suit against wife's parent for alienation of affection, warranting finding of malice if actions were wrongful and without reasonable cause, should have required intentional wrong.
Instruction in husband's suit against wife's parent for alienation of affection, warranting finding that parent acted maliciously if action was wrongful and without reasonable cause, should have been qualified to extent of stating that act or acts complained of were intentionally wrong.
4. HUSBAND AND WIFE. Instruction, in husband's suit for alienation of affection, held erroneous, as applied to wife's parent, as authorizing recovery for wrongful acts, regardless of motive.
Instruction, in husband's suit for alienation of affection, authorizing recovery on finding that defendants wrongfully caused wife to be taken from him and to lose her affection, held erroneous, as applied to wife's parents as authorizing recovery dependent on mere wrongfulness of acts, regardless of motives prompting them.
5. HUSBAND AND WIFE. Instruction authorizing recovery by husband for alienation of wife's affections, without requiring finding that facts were malicious, held erroneous as applied to wife's parent.
Instruction, in husband's suit for alienation of affection, authorizing recovery on finding that wife's affections were alienated because of act or persuasion of defendant, held erroneous, as applied to wife's parent, as authorizing recovery on mere fact of alienation of affections, without reference to whether acts were malicious or prompted by proper motives.
6. HUSBAND AND WIFE. Instruction authorizing husband's recovery on finding that actions or words of defendants caused wife's affections to be alienated held erroneous as applied to wife's parent.
Instruction, in husband's suit for alienation of affection, authorizing recovery on finding that defendants did any act or said any word to plaintiff's wife for purpose of separating them and alienating her affections, if such act or word caused alienation or contributed thereto, held erroneous as applied to wife's parent.
7. EVIDENCE. Testimony as to what his wife told witness relative to long distance telephone conversation with her sister held inadmissible as hearsay.
In husband's suit for alienation of wife's affections, his testimony relative to what his wife had told him of long distance telephone conversation with her sister, in regard to proposed activities of herself and her mother in securing wife's return home, held inadmissible as hearsay.
8. HUSBAND AND WIFE. Instruction, in husband's suit for alienation of affections, that parent had right and duty to counsel and advise child held properly refused.
Instruction, in husband's suit for alienation of wife's affections, requested on behalf of defendant parent relative to parent's right and duty to counsel and advise child, even after marriage, held properly refused as misleading.
9. HUSBAND AND WIFE. Wife's letters to husband before marriage held admissible, in husband's suit for alienation of affections.
Letters written by wife to husband before marriage held properly admitted, in husband's suit for alienation of wife's affections, as tending to show state of mind of wife and her affection for husband prior to marriage and separations.
APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.
Suit by Rayburn Robinson against David F. McRae, Mrs. Daisy Keeton, Earl Keeton, and others. From a judgment for plaintiff against defendants named, and in favor of other defendants, defendants named appeal, and plaintiff cross-appeals. Affirmed on the cross-appeal, and on direct appeal reversed and judgment rendered in part, and in part reversed and remanded.
Judgment affirmed on cross-appeal, and reversed on direct appeal.
Shannon & Schauber and Welch & Cooper, for appellant.
The court erred in refusing appellant, Mrs. Keeton, the following instruction:
It was contended that this child was eighteen; that she had a right under the law to marry; that she exercised this right; and Mrs. Keeton, her mother, without reason sought out this girl and advised her. In fact, appellee received an instruction to the effect that malice was the doing of a thing wrongfully and without reasonable excuse. Why should this mother proceed to the side of her daughter and look after her? Did she have a reasonable excuse? No, it was contended, because the girl was eighteen and had the right to marry, and did marry, and there her rights and duties ended. We had the right to have the jury told that the rights and duties of this mother did not end with the marriage of her daughter. As to the correctness of this instruction as a matter of law, see Tucker v. Tucker, 19 So. 955, 74 Miss. 93; also, Jones v. Monson, 137 Wis. 478, 119 S.W. 179, 48.
The court erred in giving appellee the instruction found on page 274. Mrs. Keeton had a perfect right to counsel her daughter. She had the right to advise her daughter, provided her motive was not one of malice. Tucker v. Tucker, 74 Miss. 93, 19 So. 955, expressly holds this. Yet this instruction tells the jury that if any act was done, or any word said, for the purpose of separating appellee and his wife and alienating her affections, then "he or she" is liable to plaintiff.
Another instruction tells the jury that appellants may be deemed to have acted "maliciously," if they acted wrongfully and without reasonable excuse.
Again, an instruction says the same thing and says further "that anger, malevolence or vindictiveness is not necessarily the meaning of anger."
It is very true that in many actions where malice is an element the definition is given that a wrongful act without a just or legal excuse indicates malice. But here we have a case where a mother is involved and the safety and future, as she conceived it, of her daughter. To say that a mother who is devoted to her daughter acts with malice, when a man of whom she knows nothing and of whom she has never heard marries her daughter and takes her away, simply because she follows them, we think is not the malice the law requires. Brown v. Brown, 124 N.C. 19, 32 S.E. 320.
The greatest authority on malice in cases of this character is found in the opinion of Chancellor KENT, in Hutcheson v. Peck, 5 Johns 196. There it is clearly shown that "malice" as used by the court meant an improper motive as opposed to a proper motive. That is the malice the law requires and not the malice which the questioned instructions set out.
An act of a parent might be wrongful. Looking back, on it, there may be no reasonable excuse. Yet, the parent might be moved by the highest motive, the welfare and happiness of her child. That being true, the parents conduct is not characterized by malice. Yet a wrongful act without excuse has been done. This instruction takes the very heart out of "malice" as the Tucker case indicates and as is held in Jones v. Monson, 137 Wis. 478, 119 N.W. 179; Beisel v. Gerlach, 221 Pa. 232, 70 A. 721; Warren v. Graham, 156 N.W. (Iowa), 323.
Other instructions omit the word "maliciously." If the act in their opinion was wrongful, regardless of the motives, a verdict was authorized. In Barton v. Barton, 119 Mo.App. 507, 94 S.W. 574, it is held that where a mother and sister are jointly sued, that the sister may avoid herself of anything the mother had as a defense. The appellants here are mother, brother and brother-in-law of the wife of appellee. Miller v. Miller, 154 Ia. 344, 134 N.W. 1058.
We assign as error the admission of the letters written by the wife of the appellee prior to this marriage. The letters were all written before the marriage. In Erickson v. Erickson, 98 Kan. 244, 158 P. 48, that court held that letters written prior to a marriage were not admissible.
Mrs. Keeton did not know that appellee was living. She knew nothing about this love affair. She knew nothing about these letters. The wife of appellee is thus allowed to testify through her letters. When the wife was offered, appellee objected. We say that these letters were incompetent and their contents damaging to Mrs. Keeton, an appellant.
Judge SMITH in his concurring opinion in Sivley v. Sivley, 51 So. 457, 96 Miss. 137, held that the statements of the alienated spouse were not admissible.
Finally we submit that the evidence does not show that Mrs. Keeton maliciously alienated...
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