Moir v. Moir

• Decision Date: 28 November 1917
• Docket Number: No. 31586.,31586.
• Citation: 181 Iowa 1005,165 N.W. 221
• Parties: MOIR v. MOIR.
• Court: Iowa Supreme Court

181 Iowa 1005

165 N.W. 221

MOIR

v.MOIR.

No. 31586.

Supreme Court of Iowa.

Nov. 28, 1917.

Appeal from District Court, Sioux County; Wm. Hutchinson, Judge.

Action for damages consequent on the alleged alienation of the affections of plaintiff's husband by his father, resulted in a judgment against defendant for $18,000. The defendant appeals. Reversed.Geo. T. Hatley, of Orange City, for appellant.

Van Oosterhout & Kolyn, of Orange City, and T. E. Diamond, of Sheldon, for appellee.

LADD, J.

[1] The plaintiff was married to William Moir, June 10, 1914. He left her December 7, 1915. She had been married before and had two children by her first husband, Claude Hoeg. Prior to her marriage to William, she had been engaged as his housekeeper from about the middle of February of that year, and was divorced in March. In September, 1914, he adopted her children. They lived on a farm rented from defendant, who resided about three miles distant. The defendant and his wife appear to have raised 9 children, of whom William is the third. He had not been healthy, and intellectually appears to be subnormal. According to plaintiff's testimony she and William had lived happily together, though William tells a different story. In passing on the sufficiency of the evidence to sustain the verdict, however, deductions from the evidence most favorable to the plaintiff must be accepted.

[2] It appears without controversy that William became involved in debt, and in November, 1914, his father paid these, then or thereafter and took a mortgage on all his property, signed by him and plaintiff, to secure the payment of these and what William owed defendant and his mother for borrowed money and rent, and subsequently furnished William money on which, in connection with the proceeds of eggs sold and the income from cows, he supported his family. Of course, evidence of William's complaints, in substance, that his father was not advancing as much money as he would like, or of the restraints on him in handling his property, owing to the mortgage, could have no bearing on the issues, as defendant was not shown to have failed to furnish the amount agreed upon, nor to have done more in relation to the property than insist that the mortgagor should not sell mortgaged property. If, as William declared, he handed over that with which to pay the nurse attending plaintiff when operated on grudgingly, he violated no duty to either, as he was under no legal duty to pay the expense incurred. The testimony of these declarations, and that his father was making trouble between him and plaintiff, or that he wished him to leave her and the like, together with evidence of sentiments expressed by William in relation to plaintiff, tended to prove the state of his affections toward her and the condition of his mind in consequence of any influence exerted thereon. But such evidence could not be considered as tending to prove that defendant or any one else had actually exerted any such influence or had interfered in any manner in his domestic affairs. As to these issues such declarations were mere hearsay. Sexton v. Sexton, 129 Iowa, 487, 105 N. W. 314, 2 L. R. A. (N. S.) 708;Hardwick v. Hardwick, 130 Iowa, 230, 106 N. W. 639;Miller v. Miller, 154 Iowa, 344, 134 N. W. 1058.

[3] The circumstance that a child is married does not sever the parents' relations with him. He may lawfully and is likely always to talk over his affairs and especially his troubles, even those relating to his domestic affairs, with them, and the law recognizes the right of parents to counsel their children, even after marriage, and concerning the most delicate relations of life. Heisler v. Heisler, 151 Iowa, 505, 131 N. W. 676;Miller v. Miller, 154 Iowa, 344, 134 N. W. 1058;Busenbark v. Busenbark, 150 Iowa, 7, 129 N. W. 332;Pooley v. Dutton, 165 Iowa, 745, 147 N. W. 154.

[4][5] For this reason more proof is required to sustain such an action against a parent than a stranger. Even though a father's advice be unsound or foolish, if it be given in good faith he is exonerated. Moreover good faith is to be presumed, and malice must in all cases be proven directly or the circumstances shown to be such that malice may be inferred. Heisler v. Heisler, supra; Geromini v. Brunelle, 214 Mass. 492, 102 N. E. 67, 46 L. R. A. (N. S.) 465, and all cases collected in note.

[6] The burden of proof then was on plaintiff to show not only that defendant by his counsel or conduct persuaded William to leave his wife, but that in so doing he was actuated by malicious motives. Appellant contends that the evidence was insufficient to carry these issues to the jury. Upon a separate examination of the record the members of the court are unable to agree whether there was any evidence from which the inference might properly be drawn that defendant had persuaded his son to abandon plaintiff or that, if he so did, he was actuated by malice therein, and as there must be a reversal on other grounds, we have concluded not to review the evidence or pass upon its sufficiency to carry these issues to the jury at this time.

[7] II. Plaintiff underwent an operation on September 10, 1915, at Lemars, and she testified that her husband visited her every day. She was then asked to relate to the jury what he had said to her and over objection answered:

“Will told me that he had asked for money to pay the nurse that had been waiting upon me and he said his father furnished the money very grudgingly.”

Motion to strike this out was overruled. The objection to the question should have been sustained, and as the answer had no tendency either to show the affection or want thereof for plaintiff, or improper conduct on the part of the defendant, the same ruling should have been made on the motion. The defendant was under no obligation to pay the bill, and if he did so reluctantly, this was no proof of hostility toward plaintiff or of any design to interfere with her marital relations.

[8] III. Plaintiff testified that defendant's wife came to see her one evening in company with her son, Carl, that she (defendant's wife) told her the story was going round that she was killing William. She was then asked what William afterward said to her about the visit. Over objection, she answered:

“Well he said the story that his mother had heard there was absolutely no truth in it and he bet his mother had never heard such a story; that it had been hashed up at home to make trouble between us.”

A motion to strike was overruled. Manifestly the ruling was erroneous. Defendant was not responsible for what his wife did, nor what might have been hashed up at home, unless he participated therein. See Heisler v. Heisler, supra.

[9] IV. Again plaintiff related that her husband's cousin from Minnesota and his brother and brother-in-law came to the place one evening; that after they left her husband stated how he felt, and also what they wanted him to do.

“Q. Tell the jury what Will...