Nevins v. Nevins

• Decision Date: 06 February 1904
• Docket Number: 13,387
• Parties: WILLIAM C. NEVINS v. ELLA D. NEVINS
• Court: Kansas Supreme Court

75 P. 492

68 Kan. 410

WILLIAM C. NEVINS v. ELLA D. NEVINS

No. 13,387

Supreme Court of Kansas

February 6, 1904

Decided January, 1904.

Error from Atchison district court; W. T. BLAND, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ALIENATION OF AFFECTIONS--Pleading. In an action for the alienation of the affections of a husband or wife, a statement in the petition of the ultimate facts of the alienation and separation is enough, without pleading the acts done and artifices used to accomplish the alienation.

2. ALIENATION OF AFFECTIONS -- Motive May be Shown. Testimony which tends to show the motive of the defendant in the efforts made to induce the separation of a husband from a wife may be admitted.

3. ALIENATION OF AFFECTIONS -- Declarations of Husband Admissible. The declarations of the husband, although not a party to the litigation, as to his estrangement and separation from the plaintiff are competent to show the effect of the wrongful interference of the defendant and of his attempt to induce a separation.

4. ALIENATION OF AFFECTIONS --Defendant Liable Notwithstanding There Were Other Causes. In such an action, if the acts done and influences used by the defendant were the controlling cause of the separation the plaintiff may recover from the defendant, although other causes may have contributed in some degree to the result.

5. ALIENATION OF AFFECTIONS -- Mental Pain and Suffering. Mental anguish, mortification and injury to the feelings are natural and necessary consequences of the alienation and separation, and a recovery may be had therefor under the general allegation of damages sustained.

6. ALIENATION OF AFFECTIONS -- Exemplary Damages. In cases like this, which involve malice and oppression, exemplary damages may be allowed.

W. W. & W. F. Guthrie, and Crane & Woodburn, for plaintiff in error.

C. D. Walker, and J. L. Berry, for defendant in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.:

On February 13, 1901, after an acquaintance of five years and a courtship of one year, Jacob W. Nevins was married to Ella D. Hargis. At that time he was about twenty-one years old and her age was about eighteen. Although they appeared to be strongly attached to each other, and the marriage gave promise of happiness, a separation occurred on April 2, 1901. Very soon after the marriage his parents manifested marked hostility toward Ella, and she charges that her husband became estranged from her by the active and persistent efforts of William C. Nevins, her father-in-law. She brought an action against him, alleging that he wrongfully, maliciously, and for the purpose of separating her from her husband, enticed and procured him to become alienated in feeling and affection for her by representing to his son, commonly known as Will Nevins, that she was unfit to be his wife ; that she was trifling and good for nothing, incapable of loving him, and quarrelsome, vicious, and unwomanly; that she was untruthful and deceptive; that he should abandon her, and that if he persisted in living with her he would disinherit and disown him; that by means of these and other like misrepresentations and inducements the defendant alienated the affections of her husband and compelled him to take her to the home of her parents against her consent; that by reason thereof she has been driven from her home and has not been permitted to return. The answer of the defendant was a denial of the averments of the petition and an allegation that the separation was due to the fault of Ella and the members of her family. Upon the issues joined a trial was had, which resulted in a judgment in favor of the plaintiff below for $ 2500.

One of the errors assigned is based upon an order permitting the plaintiff to amend her petition before entering upon the trial. The amendment consisted in the interlineation of words which, it was averred, the defendant had stated to his son with a view of alienating his affection, to wit: "That the plaintiff was and had been before her marriage unchaste in her conduct with other men." An objection was made to the amendment, but when it was allowed no application for a continuance or postponement was made or suggested by the defendant. It was enough for the plaintiff to plead the ultimate facts as to the alienation of her husband's affections by the defendant, and the acts done and artifices used to accomplish the alienation are not required to be pleaded; indeed, these are largely matters of evidence by which the ultimate facts are to be proved. That being true, the additional averment of another method by which the defendant accomplished his wrongful purpose cannot be regarded as prejudicial. (Nichols v. Nichols, 134 Mo. 187, 35 S.W. 577; French v. Deane, 19 Colo. 504, 36 P. 609, 24 L. R. A. 387; Williams v. Williams, 20 id. 51, 37 P. 614; Lockwood v. Lockwood, 67 Minn. 476, 70 N.W. 784; Brown v. Kingsley, 38 Iowa 220; Hodges v. Bales, 102 Ind. 494, 1 N.E. 692.) It was an advantage to the defendant to have a recital of the evidence by which the facts might be proved or from which they might be inferred, and it would not seem that he regarded the additional averment as a disadvantage, as no postponement of the trial was asked for by him because of being unprepared to meet the new phase of the case. Aside from these considerations, the matter of amending pleadings is committed largely to the discretion of the court, and since there appears to have been no abuse of discretion we cannot, in any view, treat the amendment as error.

Complaint is made of rulings on the admission of testimony. It was alleged, and there was testimony tending to show, that the defendant, with a view of effecting a separation, had stated that Ella sent her sister to Doctor Collins and from him obtained medicine to prevent conception. It was shown that defendant had made statements of this kind to the young husband in the presence of Ella, and when she made a denial the defendant, with much profanity and vile language, declared repeatedly that the statements were true. She testified that they were without foundation and introduced Doctor Collins, who testified that she had not obtained such medicine from him. The testimony tended to show the animus of the defendant, and to that extent was competent. The doctor lived and practiced in the neighborhood and from him the defendant could have learned the truth. Ella told him that the charge was unfounded, but instead of inquiring as to the fact from the doctor, who could have given him correct information, he recklessly persisted in spreading poison by repeating the falsehood to his son and to others in the neighborhood.

There was objection also to the testimony of the witness Doyle, who had undertaken to effect a reconciliation between the young people. He gave the statements made by Will and Ella when he interceded, and there is objection that these statements were made in the absence of the defendant. The declarations of the young husband, although not a party to the suit, were admissible to show the effect that his father's wrongful interference and misrepresentations had upon his mind. It was competent not only to show the active and persistent efforts of the defendant to alienate his son from Ella, but it was also both proper and necessary to show the effect of such efforts upon the...