Nichols v. Nichols

• Citation: 147 Mo. 387,48 S.W. 947
• Parties: NICHOLS v. NICHOLS et al.
• Decision Date: 22 June 1898
• Court: United States State Supreme Court of Missouri

48 S.W. 947

147 Mo. 387

NICHOLS v. NICHOLS et al.

Supreme Court of Missouri, Division No. 1.

June 22, 1898.

HUSBAND AND WIFE — ENTICING AND ALIENATING — DAMAGES — INSTRUCTION — EVIDENCE — CONSORTIUM — VERDICT — TORTS OF WIFE.

1. Under the married woman's act (Rev. St. 1889, § 6869), permitting a married woman to own property and rights in action, and to sue as a feme sole, she may sue for enticing her husband away from her, and inducing him to abandon her.

2. It is no defense to such an action that at the time suit was brought the husband's affections had not been entirely alienated.

3. Where a charge limited the finding to compensatory damages, defendants cannot complain that it predicated the right to recover on their willful and malicious conduct.

4. In an action by a wife for inducing her husband to abandon her, her damages are not limited to the value of her support and loss of consortium up to the time of bringing suit.

5. Where, in cross-examination, counsel go outside of the examination in chief, and examine the witness as to other conversations, they make him their witness as to such new matter, and cannot complain that on redirect these conversations were brought out in full, though originally hearsay.

6. In an action for inducing a husband to abandon his wife, newspaper notices, warning all persons against harboring or trusting the wife, signed by the husband, and inserted and paid for by defendant, are competent.

7. In an action for inducing a husband to abandon his wife, proof that on being shown a newspaper notice warning all persons against harboring or trusting her, signed by the husband, and inserted by defendant, she "threw herself into [her mother's] arms, sobbing," was competent as showing the effect on her feelings of defendant's acts.

8. In an action by a wife for inducing her husband to abandon her, proof of defendant's pecuniary condition is competent.

9. In an action by a wife against her husband's parents for inducing him to abandon her, the evidence showing that they were living happily together, and that the parents unjustifiably interfered and caused a permanent separation, a verdict of $5,000 is not so excessive as to warrant the belief that it was the product of corruption or passion.

10. Married Woman's Act (Rev. St. 1889, § 6864 et seq.), abrogating the husband's common-law rights in his wife's property, does not affect his common-law liability for her tortious acts during coverture.

Appeal from circuit court, Vernon county; D. P. Stratton, Judge.

Action by Victoria Nichols against Benjamin and Arpa Ann Nichols. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Tucker & Moore and Thurman & Wray, for appellants.

Timmonds & Timmonds and Cole & Burnett, for respondent, cited the following cases as to liability of husband for torts of wife: Wirt v. Dinan, 44 Mo. App. 590; Flesh v. Lindsay, 115 Mo. 1, 21 S. W. 907; Ilgenfritz v. Ilgenfritz, 49 Mo. App. 127; McCorkle v. Goldsmith, 60 Mo. App. 475; Plummer v. City of Milan, 70 Mo. App. 598; Real-Estate Co. v. Lindell, 142 Mo. 78, 43 S. W. 368; Thompson v. Railway Co., 135 Mo. 217, 36 S. W. 625; Bains v. Bullock, 129 Mo. 119, 31 S. W. 342; Russell v. Russell, 122 Mo. 236, 26 S. W. 677; Brown v. Dressler, 125 Mo. 590, 29 S. W. 13; Gabriel v. Mullen, 111 Mo. 119, 19 S. W. 1099; State v. Ma Foo, 110 Mo. 7, 19 S. W. 222; Crawford v. Whitmore, 120 Mo. 144, 25 S. W. 365; Gwin v. Smurr, 101 Mo. 550, 14 S. W. 731; Farley v. Stroeh, 68 Mo. App. 85; Macfarland v. Heim, 127 Mo. 327, 29 S. W. 1030; Lindsay v. Archibald, 65 Mo. App. 117; Smith v. Schoene, 67 Mo. App. 604; Bartlett v. Roberts, 66 Mo. App. 125.

BRACE, P. J.

The defendants are husband and wife. This is an action by the plaintiff against them to recover damages for wrongfully inducing her husband, George Nichols, who is the only son of the defendants, to abandon her, and to live separate and apart from her, thereby depriving her of his affection, companionship, society, protection, and support, in which the plaintiff obtained judgment in the circuit court for $5,000.50, and the defendants appeal. The case has been here before on plaintiff's appeal from a judgment of the circuit court sustaining a demurrer to the petition, on which appeal the petition was held sufficient by this court, the judgment reversed, and the cause remanded for trial. Nichols v. Nichols, 134 Mo. 187, 35 S. W. 577, where the petition is set out in hæc verba. After the cause was remanded, the defendants filed separate answers to the petition, in each of which the relationship of the parties is admitted, and all the other material allegations of the petition are denied; and upon the issues thus joined the case was submitted by the court to the jury upon the following instructions, omitting those not bearing directly upon the issue, after refusing to give 20 instructions asked for by the defendants: Instructions for plaintiff: "No 3. A wife is entitled to the society, companionship, comfort, protection, and aid of her husband. The law gives her a right of action against any person who willfully and maliciously entices, persuades, induces, or influences her husband to separate or remain apart from her. Therefore, if you shall believe from the evidence that the defendants willfully and maliciously acted in concert or co-operated together with the purpose and intent to cause the separation of the plaintiff's husband from her, and to cause him to remain apart from her, and that they did thereby accomplish such purpose and intent, then your verdict shall be in favor of the plaintiff, and you should assess her damages at such sum as you may believe from the evidence will reasonably compensate her for the deprivation and loss of her husband's society, comfort, companionship, protection, and aid: provided, your verdict should not exceed the sum of ten thousand dollars. No. 4. The law does not justify or excuse parents in willfully and maliciously interfering in the domestic affairs of their married children. Therefore, although you may believe from the evidence that the defendants are the parents of plaintiff's husband, still if you shall further believe from the evidence that they are guilty of procuring or bringing about the separation of plaintiff's husband from her, and causing him to remain apart from her, as in the foregoing instruction stated, your verdict should be in favor of the plaintiff." Instructions by the court on its own motion: "No. 1. Unless you believe from the preponderance or greater weight of the evidence that the defendants willfully and maliciously induced George Nichols, the husband of the plaintiff, to cease to live with her as her husband, your verdict will be for the defendants. No. 2. Although you may believe from the evidence that the defendants, or either of them, induced the husband of the plaintiff to cease to live with her as a husband, yet if you further believe from the evidence that said defendants, or either of them, had good reason to believe, and did believe, that the husband of plaintiff had good grounds to so cease to live with her as his wife, your verdict will be for the defendants. No. 3. If you believe from the evidence that George Nichols, the husband of the plaintiff, ceased to live with her as her husband, and of his own accord, and was not influenced or induced so to do by the defendants, or either of them, your verdict will be for the defendants. No. 4. If you believe from the evidence that plaintiff's husband was influenced or induced to cease to live with her as her husband solely by the defendant Benjamin Nichols, and not by the defendant Arpa Ann Nichols, your verdict will be for the defendant Arpa Ann Nichols. No. 5. Your verdict will be for the defendant Arpa Ann Nichols, unless you believe from the evidence that she influenced or induced the husband of the plaintiff to cease to live with her as her husband."

It appears from the evidence: That on the 11th day of February, 1892, with the knowledge and consent of the parents of both parties, the plaintiff, then aged about 20, and George Nichols, then aged about 25 years, were married in the city of Lamar, in Barton county, where her parents resided; and where, just without the city limits, on a farm, the defendants also resided. That shortly thereafter they went to housekeeping in the town of Liberal, on the railroad, west of Lamar, and distant therefrom about 15 miles, in a house belonging to the defendants, in one room of which they kept a small notion and millinery store, the plaintiff doing all her own housekeeping work, and assisting in the store. That from the time of the marriage until Sunday, the 26th of March, 1893, they lived happily together in the marital relation. In pursuance of an arrangement theretofore made, they left their home on the morning of that day, and went to Lamar by horse and spring wagon, where they stayed all night with the plaintiff's parents, with the understanding that next morning the plaintiff and her mother would take the conveyance, and pay a visit to some friends in Sheldon, a town about 12 miles north of Lamar, and return the same evening, where she was expected to purchase some goods for the store, and return to her home by train that evening or the next morning, while George would go to his father's for a few days, to assist him on the farm. With this understanding she retained the keys, and went with her mother to Sheldon. It rained, however, Monday afternoon, and plaintiff and her mother were prevented from making their return trip to Lamar until Tuesday. In returning on that day they passed hastily by the farm of the defendants, where she saw her husband and his father; reached Lamar too late, however, to make her purchases and return to Liberal by the train that evening; stayed all night with her parents at Lamar; reached her home in Liberal by the early train Wednesday morning, March 29th, at 6 o'clock, and at once opened the...