Murray v. Murray Et Ux.

• Citation: 30 N.M. 557,240 P. 303
• Decision Date: 10 September 1925
• Docket Number: No. 2915.,2915.
• Parties: MURRAYv.MURRAY et ux.
• Court: Supreme Court of New Mexico

30 N.M. 557

240 P. 303

MURRAY

v.MURRAY et ux.

No. 2915.

Supreme Court of New Mexico.

Sept. 10, 1925.

Syllabus by the Court.

An action by a married woman against the parents of plaintiff's husband for alienation of her husband's affections will lie, even though plaintiff's husband has not completely and in a literal sense abandoned her.

The presumption that the advice of a parent to his child is made in good faith is overcome, where interference is shown, and no reason or excuse for the same can be deduced from the circumstances.

Where court, over objection, permitted plaintiff to testify as to the contents of a letter of the parent to the husband of plaintiff, the objection being upon the ground that the letter was not sufficiently accounted for to allow secondary evidence of its contents, the error, if any, of the court was technical and immaterial, in view of the testimony of the parent that no such letter was ever written.

Letters written to plaintiff by her husband, showing a deep affection for her, was admissible to rebut claim of defendants that no affection existed between them and hence none to be lost; such communications not violating the privileged communication or the hearsay evidence rules.

In an action by the wife for alienation of her husband's affections, statements of her husband would not be competent evidence of affirmative hostile actions on the part of the defendants, but, so far as such statements tend to show the condition of her husband's mind and feelings toward the plaintiff at the time, and the effect of the conduct of the defendants upon the affections of her husband for her, they are competent for this limited purpose.

Additional Syllabus by Editorial Staff.

“Consortium” means much more than mere sexual relation, and consists also in that affection, companionship, conjugal love, fellowship, and assistance so necessary to a successful marriage relation.

Appeal from District Court, Bernalillo County; Hickey, Judge.

Action by Adelaide Murray against D. E. Murray and wife. Judgment for plaintiff, and defendants appeal. Affirmed, and remanded with directions.

In view of Code 1915, §§ 2165, 2167, 2168, and 2174, relating to rights of one spouse to testify in trial in which other is concerned, letters written to wife by husband, showing deep affection, were admissible to rebut claim of his parents, sued by her for alienating his affections, that no affections existed between them; such communications not violating rule as to privileged communications.

Hanna & Wilson and George Lougee, all of Albuquerque, for appellants.

E. W. Dobson, of Albuquerque, for appellee.

PARKER, C. J.

The appellee (plaintiff) brought an action for damages against appellants (defendants) for the alienation of the affections of plaintiff's husband, and recovered a verdict and judgment for $12,500. The defendants are the father and mother of plaintiff's husband. Counsel for defendants argue that there was not sufficient legal evidence to support the verdict.

[1][6] 1. It is first urged that the gist of the action for the alienation of the affections of a spouse is the loss of consortium. It is then argued, quoting from the testimony of the plaintiff, that she had already herself broken the conjugal relation by locking the husband out of her room. This is a misconception of the scope and meaning of consortium. Consortium means much more than the mere sexual relation, and consists also in that affection, companionship, conjugal love, fellowship, and assistance so necessary to a successful marriage relation. Rott v. Goehring, 33 N. D. 413, 157 N. W. 294, L. R. A. 1916E, 1086, Ann. Cas. 1918A, 643; 13 R. C. L. “Husband and Wife,” § 517; 30 C. J. “Husband and Wife,” § 979.

The real happiness of marriage may be destroyed by the loss of the spouse's affection, kindness, and friendship, and yet the parties may, for reasons of convenience, expediency, welfare of children, or public opinion, submit to and continue the relation, although the principle joy and happiness thereof has been destroyed by the wrongful action of some third person. It follows, therefore, that counsel are in error in this contention.

[2] 2. Counsel for defendants argue generally that, laying aside all questions of admissibility, the evidence is insufficient to support the verdict. The proofs of plaintiff show that the parties were married and living in Santa Fé when the mother came to visit them on account of the illness of the son, plaintiff's husband. The mother at once showed a marked dislike of plaintiff, and stated to her son that she could not see why he had married a Southern girl; that he had been raised differently; asked her son if he would not be glad to get home and have some of mother's good cooking; that plaintiff should do the work of the household without a servant. This visit, lasting about three weeks, terminated in considerable ill feeling between the two women. Plaintiff next saw defendants at their home in Big Rapids, Mich., in the fall of 1917. While there, she overheard a conversation between her husband and his father, in which the father told his son that he had just as well get rid of his wife; that his mother disliked plaintiff, and that she had a disposition to have her way, and that she would in time force the husband to leave his wife; that the son had better divorce the plaintiff before he left for overseas, as she would not be faithful to him while he was gone. All of the parties went from Michigan to Washington, D. C., and stayed a while with plaintiff's mother in a suburb of the city. They next met in the Palmer House in Chicago, where the mother stated that she would not stay under the same roof or in the same building with plaintiff, and left the hotel, going to a hospital for treatment. The plaintiff's husband went overseas with the American Expeditionary Forces, and plaintiff went to live with her mother near Washington, D. C., where she gave birth to a child, which died at birth. During this time, defendants gave plaintiff no aid or consolation whatever. Upon the husband returning home from overseas, plaintiff and he went directly to Silver City, N. M., where they resided for some time.

In the fall of 1919, the mother wrote the son a letter to Silver City in which she accused plaintiff of being “common white trash,” and a woman of immoral character, and threatened that they (both parents) would disinherit the son if he did not get rid of plaintiff. The son showed the letter to plaintiff, and it was read by others, but it was not produced at the trial, the son having kept it. In June, 1922, both defendants came to Albuquerque, to which place plaintiff and her husband had removed. They came unannounced, and registered at a local hotel. They phoned the son, and plaintiff and her baby were invited by the son to accompany him to the hotel, while, as he said, he was making a professional call. He went into the hotel, met the defendants, and visited with them for an hour or so, plaintiff and the baby remaining in the car. The three then came out of the hotel to where plaintiff was in the car. The son asked defendants to get in the car, and all drove to the home of plaintiff, and the son and defendants remained until about 10 o'clock that night. About two or three days later, plaintiff and the son were in their car and met defendants on the street, picked them up, and all went for a ride.

Plaintiff next saw defendants at her home, where she had invited them to dinner. When her husband came in, over an hour late for dinner, he was in an angry mood, and told plaintiff if she had anything against his parents, the defendants, to go right in and have it out with them. He pushed her into the room where they were, and she told the mother that, as she had been the cause of all the trouble between her and her husband, she could not expect her to entertain the family. The defendants and the son, plaintiff's husband, left the house, and the son did not reappear for three or four days. Then he came for one meal a day at 5 p. m., and slept at the house, coming in from 10 p. m. to midnight. He frequently used brutal and profane language to plaintiff, using the “white trash” expression of his mother, said he did not love plaintiff, and he was going to leave her and live with defendants. This condition of affairs continued until July 8, 1922, when plaintiff filed her complaint in this case. The husband thereupon softened much in his demeanor toward plaintiff, but in about ten days left her and their baby, and was not seen again by them until the day of the trial, where he was present but did not testify.

The testimony of defendants is simply a denial of the charges of the plaintiff. They also produced witnesses to show that plaintiff and her husband frequently quarreled and did not live very happily together, but no effort was made to show that plaintiff was not a good wife or that there was any reason why the husband should separate from her, or any reason or excuse for the alleged conduct of defendants. Under all these circumstances, it is clear that, if the jury believed the testimony of the plaintiff, as they undoubtedly did, they might well find for the plaintiff. There was, according to her testimony, no occasion for any interference by defendants with plaintiff's relations with her husband, and, such interference not being traceable to any just cause, it is to be attributed to a willful determination to break up plaintiff's home.

We are aware, in this connection, of the presumption that the advice of a parent to his child is made in good faith and in the child's interest as the parent sees it. Birchfield v. Birchfield, 29 N. M. 19, 217 P. 616. But in a case like this, where the interference is shown, and no reason or excuse...