Mussellem v. Frenn

• Decision Date: 05 June 1923
• Docket Number: Case Number: 13292
• Citation: 101 Okla. 45,225 P. 370,1923 OK 344
• Parties: MUSSELLEM et al. v. FRENN.
• Court: Oklahoma Supreme Court

1923 OK 344

225 P. 370

101 Okla. 45

MUSSELLEM et al. v. FRENN.

Case Number: 13292

Supreme Court of Oklahoma

Decided: June 5, 1923

Syllabus

¶0 1. Husband and Wife--Alienation of Affection--Presumption of Affection.

In an action for alienation of affection, it will be presumed that the plaintiff's husband has affection for her up to the time of the separation in the absence of evidence to the contrary.

2. Same--Action--Burden of Proof.

In order to sustain an action for the alienation of a husband's affections it must appear, in addition to the fact of alienation, that there has been a direct interference on defendant's part sufficient to satisfy the jury that the alienation was caused by the defendant, and the burden of proof is upon the plaintiff to show such interference.

3. Same--Circumstantial Evidence.

An action for alienation of affection can be established by circumstantial evidence, by facts that do not make a whole case, aided by just inferences from those facts in combination with others.

4. Same -- Judgment -- Evidence -- Instructions.

Record examined and held: (1) That the evidence does not reasonably support the judgment against the defendant M. S. Mussellem; (2) That the trial court erred in not clearly instructing the jury that alienation of her husband's affection is the gist of plaintiff's action and in not instructing the jury that the class of testimony referred to in the opinion is admissible only for the purpose of showing malice.

5. Same--Reversal.

For the reason stated, the judgment of the trial court is reversed, and the cause remanded, with directions to grant a new trial.

Error from District Court, Muskogee County; E. A. Summers, Judge.

Action by Maggie Frenn against M. S. Mussellem and another for damages for alienation of husband's affections. Judgment for plaintiff, and defendants bring error. Reversed and remanded, with directions.

F. E. Riddle (Crump, White & Seawell and Gibson & Hull, of counsel) for plaintiffs in error.

Harry G. Davis and Neff & Neff, for defendant in error.

KANE, J.

¶1 This was an action for damages for alienation of the affections of her husband, commenced by the defendant in error, plaintiff below, against the plaintiffs in error, defendants below.

¶2 The petition of the plaintiff alleged, in substance, that she was married to one Mike Frenn in 1906, and lived with him as his wife until they were separated in September 1919; that five children, three of whom are living, were born of said marriage; that in October, 1914, the plaintiff and her husband moved to Muskogee, Okla. ; that the defendant Sophia Mussellem was a niece of her husband, Mike Frenn; that in November, 1917, one Charlie Ollie rented a room from the plaintiff, and that soon thereafter the defendant Sophia Mussellem tried to induce the said Charlie Ollie to leave the plaintiff's home and go to her house; that upon his refusal to do so the defendants became offended and falsely accused the plaintiff to her husband with improper relations with Charlie Ollie, and thereby alienated his affections and induced him to separate from plaintiff and stop all support of her and her three minor children.

¶3 The answer of the defendants was in effect a general denial.

¶4 Upon trial to a jury there was a verdict in favor of the plaintiff against both defendants in the sum of $ 17,500, $ 5,000 thereof being for actual damages and $ 12,500 being for exemplary damages, upon which judgment was duly entered, to reverse which this proceeding in error was commenced.

¶5 The grounds for reversal relied upon by counsel for plaintiffs in error are briefly summarized in their brief substantially as follows:

(1) Said court erred in overruling the motion of the plaintiffs in error for a peremptory instruction to the jury to return a verdict for them at the close of all the testimony.

(2) Said court erred in admitting incompetent evidence on behalf of the defendant in error.

(3) Court erred in the matter of instructing the jury.

¶6 The first ground for reversal seems to be well taken in so far as the defendant M. S. Mussellem is concerned. The evidence shows without serious contradiction that the plaintiff and her husband had several quarrels resulting in separation prior to the time the final separation occurred. There is nothing in the record tending to explain any of the previous quarrels or separations or what caused them. Of this last separation the plaintiff testified that her husband "went away on account of the house rent, and that was the cause of his leaving at that time." It is settled law that in an action for alienation of affection it will be presumed that the plaintiff's husband had affection for her up to the time of the separation, in the absence of evidence to the contrary. Flandermeyer v. Cooper (Ohio) 98, N.E. 102. Now as we understand the plaintiff's theory of her case, she admits that her husband had affection for her right up to the time of their last separation, but she contends that some time within the next four days after that event the defendants poisoned her husband's mind against her and alienated his affection by falsely charging her with improper relations with Charlie Ollie. In relation to the final separation the plaintiff testified, in substance, that in four days after her husband left on account of the house rent, he returned to their home accompanied by Mrs. Mussellem and accused her of having a child by Charlie Ollie, whereupon she had him arrested and thereafter refused to live with him, although many efforts were made by the Mussellems and others to induce her to take back her husband on account of the children.

¶7 We have searched the record with considerable care, and...