Moore v. Grimes

• Decision Date: 11 September 1934
• Docket Number: 22329.
• Citation: 35 P.2d 944,169 Okla. 4,1934 OK 424
• Parties: MOORE v. GRIMES.
• Court: Oklahoma Supreme Court

35 P.2d 944

169 Okla. 4, 1934 OK 424

MOORE v. GRIMES.

No. 22329.

Supreme Court of Oklahoma

September 11, 1934

Syllabus by the Court.

1."The admission of incompetent evidence by the trial court will not warrant a reversal of a judgment supported by competent evidence, unless the Supreme Court can say, upon an examination of the whole record, that a miscarriage of justice has probably resulted or a statutory or constitutional right of the complaining party has been violated."Clover v. Neely,116 Okl. 155, 243 P. 758.

2.In an action by one spouse for the alienation of the affections of the other, the showing of malice and intent need not be as strong where the action is against a stranger as in cases against a parent, and in the former case actual intent is not necessary if defendant's acts are inherently wrong and seductive and tend to and do have the effect complained of.

Appeal from District Court, Okmulgee County; James M. Hays, Judge.

Action by Anna Grimes against Janet Moore.Judgment for plaintiff and defendant appeals.

Affirmed.

Joe S Eaton and Edward J. Gilder, both of Okmulgee, for plaintiff in error.

A. N Soliss, of Compton, Cal., and H. S. Samples, of Okmulgee, for defendant in error.

RILEY Chief Justice.

This is an appeal from a judgment in an action brought by defendant in error for the alleged alienation of the affections of her husband, Joe Grimes, by plaintiff in error, Janet Moore.The parties will be referred to as in the trial court.

Defendant first contends that the court erred in overruling her demurrer to plaintiff's amended petition.

The authorities cited do not support her contention.

The record discloses that in 1928plaintiff lived with her husband at Compton, Cal.; that defendant then lived in Henryetta, Okl.; that about August, 1928, plaintiff's husband's father, whose residence was next door to that of defendant, died.Plaintiff's husband came from California to Henryetta to attend the funeral.He first met defendant about 6 o'clock a. m., the day of the funeral, and left that night at 10 o'clock.During that time he had some conversation with defendant about her going to California.There is no evidence of any improper conduct during that visit.They corresponded some thereafter, and about November, 1928, plaintiff's husband sent defendant $75 towards paying her expenses to California.She went by automobile with another woman.At El Paso defendant wired plaintiff's husband for more money and he wired her $15, at Ph nix, Ariz. Plaintiff's husband met defendant at San Bernardino, Cal.He paid her hotel bill there.Next day he went with her to Long Beach, where they stayed one night; he again paying her hotel bill.They went from there to Catalina Island, spent the day there, and from there to Compton.There he secured a small house for defendant and her companion, he paying the rent.There defendant became ill and plaintiff's husband hired a nurse for her for a week or more.About December 31, defendant left Compton and went to Oakland.From there she returned to Oklahoma about January 6 or 11, 1929.Plaintiff's husband paid the expense of the return trip.It appears that during all this time plaintiff had no knowledge of what was going on between her husband and the defendant.About January 29, 1929, plaintiff found a letter in her husband's pocket which he had written to defendant, and had placed in an envelope addressed to plaintiff.Therein she found two envelopes which were addressed to her husband at Wilmington, Cal.After reading the letter she conceived the idea that defendant was probably writing to her husband, and that her husband was sending self-addressed envelopes for that purpose, having the letters sent to Wilmington instead of Compton.Thereafter she went to Wilmington and inquired for mail for her husband.The result was that she obtained two rather endearing letters written by defendant to her husband.One of these was dated January 27, 1929, and the other April 21.When the husband was confronted with the letters he had written to defendant, he admitted to plaintiff substantially all the foregoing facts, and told her that the letters which plaintiff had taken from the post office at Wilmington were written by defendant.She was permitted, over the objections of defendant, to testify to what her husband had told her.

Defendant earnestly contends that the admission of this hearsay evidence was reversible error.That such evidence was inadmissible in the first instance as substantive evidence to show defendant's guilt must be...