Miller v. Busey

• Decision Date: 31 May 1916
• Citation: 186 S.W. 983
• Parties: MILLER v. BUSEY et al.
• Court: Missouri Supreme Court

186 S.W. 983

MILLER v. BUSEY et al.

Supreme Court of Missouri, Division No. 2.

May 31, 1916.

Appeal from Circuit Court, Platte County; Alonzo D. Burnes, Judge.

Action by R. A. Miller against John Busey and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Plaintiff sued defendants for the alienation of the affections of his wife. Upon a trial by a jury, plaintiff was cast, and after the usual steps has appealed.

Plaintiff's petition, among other things, averred that plaintiff and his wife, one Beulah Miller (born Busey and the daughter of defendants), at a time set out, were living happily together as husband and wife "enjoying the aid, support, companionship, society, and affection of each other," but that defendants, who were during all the times mentioned husband and wife, well knowing the above facts, "wrongfully, wickedly, and maliciously acted and co-operated together with the wrongful, wicked, and malicious intent to cause plaintiff's wife to leave and abandon him, and to cease living with plaintiff as his wife, and to deprive plaintiff of the aid, companionship, society, and affection of his said wife." Consummation of the above alleged acts and machinations of defendants is averred to have occurred in November, 1910, at which time plaintiff charges that his wife left and abandoned him finally, being influenced in so acting by the malicious enticement, influence, and inducements of defendants. The petition fixes the damages at $25,000, and prays judgment therefor; hence our jurisdiction.

The answer, after admitting the marriage of plaintiff with Beulah Busey (called hereinafter, for brevity and convenience, Beulah, simply), avers that on the 1st day of July, 1911, a court of competent jurisdiction entered a decree in her favor, divorcing her absolutely from plaintiff on the grounds of such cruelty and barbarity as endangered her life, and for indignities offered her, which indignities rendered her condition intolerable, among which latter as details were specified the alleged facts that upon a time said Beulah was ill and in need of medical attention, but plaintiff refused to call a physician to treat her, and that he neglected to furnish her with the necessaries of life; further answering, defendants interposed a general denial.

Plaintiff, at the time of the trial, was 52 years of age; the record does not show the age of Beulah, though inferably she was many years younger. Plaintiff and Beulah were married on the 7th of June, 1906, after a courtship having, it seems, some clandestine features, or at least prosecuted away from the home of defendants, seemingly without the knowledge of defendant John Busey, but with the concurrence apparently, if not the connivance, plaintiff intimates, of defendant Hattie Busey. After the marriage and after a short visit to the relatives of plaintiff in Kentucky, he and his wife went to Guthrie, Okl., to reside. There plaintiff engaged in the real estate business, inferably not in a profitable way, however. Later he operated an employment agency and a rooming house. The employment agency and the rooming house of plaintiff do not seem to have been prosperous; so Beulah engaged in dressmaking, whereat she earned some $3 per week for a short time. Afterward and for some nine months or more she worked in a laundry at Guthrie, over which laundry she and plaintiff had rooms. Some time in 1907 or 1908 plaintiff and his wife moved from the laundry building and went to live in a building which had formerly been used for a saloon; in the front part of which building plaintiff maintained a real estate office, and in another portion of which rooms were let to lodgers. After staying at this place for some six weeks plaintiff and his wife returned to Missouri, and plaintiff rented a little farm in Platte county, and his wife returned to the home of defendants for a visit. Beulah refused to live on the farm rented by plaintiff, for the reason that the house thereon was, she said, unfit to live in, and the tillable land appurtenant thereto consisted of a poor and unproductive soil.

At a time not stated in the record, plaintiff returned to Oklahoma, and in July, 1908, Beulah returned to him, pursuant to his written request, and remained in Guthrie until December, 1908; again, we gather from the record, she worked in the laundry. Beulah went home again to defendants in December, 1908, for the reason, as she says in her testimony, that plaintiff and she were destitute. She had paid from her earnings at laundry work the last two months' house rent and the last five or six weeks' grocery bill prior to December, 1908. Referring to their financial stress and condition at this time, Beulah says in her testimony:

"From the time of our marriage until December, 1908, my husband never gave me money to buy clothes with and never bought me any clothes. I made $233, which all went to pay rent and help buy food; we had corn bread three times a day. I made 15 cents worth of meat last three meals and lots of times didn't have any coffee or tea in the house. I often burned paper and dried weeds for fuel. The only piece of clothing my husband ever bought me was a secondhand kimono, after I had had typhoid fever."

Plaintiff's wife seems to have remained at her former home with her parents, the defendants, from December, 1908, to December, 1909. One evidentiary detail adduced to eke out the complaint is, that during this time plaintiff went to a certain church where his wife and her mother (defendant Hattie Busey) were also in attendance. He had permitted his beard to grow and wore spectacles so that at first neither his wife nor said defendant recognized him. Beulah, recognizing plaintiff when he spoke, shook hands and greeted him, but said defendant refused to speak, and said to Beulah, "Come on, let's go home," and thereupon defendant and Beulah went away together and left plaintiff.

Plaintiff's evidence further tends to show that in 1908 and prior to the first visit of his wife to her old home, certain letters were received by Beulah from her mother, in one of which the latter wrote, "I want to know whether you are coming or not; I can't get along without you and let me know at once;" and in another, "We are looking for you home; when are you coming home?" and in still another, "We are looking for you home; you promised to come back; I can't get along without you; you must come." Subsequent to the receipt of these letters, however, plaintiff's wife returned to him and again left him, and again a second time returned to him; all which returns being seemingly without let or hindrance from defendants.

During the first separation of plaintiff and his wife he stated that he went to defendant John Busey while the latter was in the field engaged in planting corn, and was told by said defendant with much heat, profanity, and epithets that he "couldn't get his wife"; that she was there and that "he [defendant] was going to keep her there." In November, 1909, plaintiff went to the house of defendant in company with the sheriff and a somewhat similar scene occurred, wherein defendant John Busey again cursed him and told him that he should not speak to Beulah again if he could help it, and told Beulah to go into the house, which she did. But subsequent to all this and in December, 1909, Beulah again returned to plaintiff and lived with him until August, 1910, at which time she became ill of typhoid fever, went back to the home of her parents, the defendants, and never afterward returned to cohabit with plaintiff.

Except for a conversation which one George Miller, a brother of plaintiff, says that he had with defendant Hattie Busey in 1911, the record discloses neither words nor overt acts on the part of either of the defendants subsequent to December, 1909, in anywise pertinent. This conversation occurred, according to the witness, at a funeral at Pleasant Ridge in Platte county. The witness says that he asked Beulah if she were going home and was told by her that she was, whereupon defendant Hattie Busey said: "I just don't believe I will let her go; I need her at home."

The testimony as to the surroundings and condition of plaintiff's wife just prior to her final separation from him is conflicting. If plaintiff's wife and the witnesses for defendants are to be credited, she was in dire need of food, medicines, and medical treatment at the time she was taken home. As stated, she was ill of typhoid fever. Some of the...