Oliver v. Oliver

• Decision Date: 22 October 1954
• Docket Number: No. 33574,33574
• Citation: 159 Neb. 218,66 N.W.2d 420
• Parties: Merton Arnold OLIVER, Appellee, v. Bob OLIVER, Appellant.
• Court: Nebraska Supreme Court

Page 420

66 N.W.2d 420

159 Neb. 218

Merton Arnold OLIVER, Appellee, v. Bob OLIVER, Appellant.

No. 33574.

Supreme Court of Nebraska.

Oct. 22, 1954.

Syllabus by the Court.

1. Alienation of affections and criminal conversation are separate and distinct wrongs.

2. Alienation of affections is not a necessary element in criminal conversation, wrong done in former being deprivation of spouse of right to aid, comfort, assistance, and society of other spouse in family relationships, while wrong done in criminal conversation is violation of spouse's right to exclusive privilege of sexual intercourse.

3. It is the duty of the trial court to present to the jury those issues which are raised by the pleadings and which find support in the evidence.

4. In stating the issues to the jury it is error, which may be prejudicial, for the trial court to include allegations of which there is no proof.

Blackledge & Sidner, Kearney, for appellant.

Dryden, Jensen & Dier, Kearney, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action to recover damages for criminal conversation. Merton Arnold Oliver is the plaintiff and Bob Oliver is the defendant. The case was tried to a jury, resulting in a verdict in favor of the plaintiff. Defendant's motion for judgment notwithstanding the verdict and in the alternative motion for new trial was overruled. The defendant perfected appeal to this court. For convenience the parties will be referred to as originally designated in the district court.

The record shows that the plaintiff and his wife, Blanche Inez Oliver, were married in Yuma, Arizona, on October 15, 1942. They are the parents of four minor children. The plaintiff and his wife, after their marriage resided in California, and came to Nebraska in 1947, to enable the plaintiff to help his father in farming operations. They settled in the Shelton community in Buffalo County where the plaintiff was born and raised. The defendant is a resident of the Shelton community. The plaintiff and the defendant are distantly related, being either second or third cousins. Upon the return of the plaintiff to Nebraska, the plaintiff and defendant renewed their boyhood acquaintance. The plaintiff, with his wife and family, lived in a remodeled house 2 miles west and a mile north of Shelton. The defendant lived with his parents approximately a mile west of Shelton. In 1947, the plaintiff and the defendant together bought a corn sheller and a truck, and did some custom corn shelling. The plaintiff did not have a car and the defendant had a 1950 model Buick, and on occasions would take the plaintiff and his wife to social functions. Primarily such functions consisted of dances at various places. The defendant usually paid the expenses of these trips. Apparently the relationship between the plaintiff, his wife, and the defendant was on a friendly basis. In 1949 or 1950, the plaintiff and his family moved to a house a quarter of a mile south of the home of the defendant's father. The defendant made the arrangements for this move. The relations between the plaintiff, his wife, and the defendant were about the same after they moved. On occasions the defendant would visit the plaintiff's home when he was there and also during his absences. Independently of the testimony of the plaintiff's wife, there is evidence to justify the inference that the defendant had deliberately participated in the creation of opportunities to be with her during the absence of her husband.

Approximately a year and a few months after the plaintiff and his family moved, the plaintiff heard some stories and rumors that he did not like, and as a consequence, moved to another place approximately 2 1/2 miles from where the defendant lived. The defendant helped the plaintiff move.

The first that the plaintiff knew there was anything wrong between his wife and the defendant was when his wife told him about the situation near Christmas time in 1951.

The plaintiff's wife testified that on occasions the defendant, using his car, took the plaintiff and her to social functions and would not ordinarily have a date or take a girl friend. In addition, she testified to instances and occurrences during the absence of her husband, and one in his presence, indicating that the defendant was making love to her. Further, she testified that on occasions the defendant endeavored to have her leave the plaintiff, obtain a divorce, and marry the defendant. He said that they would live where she desired to live, and he would raise and support the two minor children of the plaintiff and his wife. There are other instances which need not be enumerated. The specific instance of the alleged sexual relations between the defendant and the plaintiff's wife is in substance as follows: On October 19, 1951, she attended a PTA meeting at the school house in Shelton. The defendant knew that she was going to be there, and after the meeting his car was parked in front of the school house. He implored her to follow him, which she did. They went to a place off the highway owned by the defendant's father, a mile and a half west and south of where the plaintiff and his family lived. There was some talk between the defendant and the plaintiff's wife as to what should be done about the situation, the defendant saying that she would have to do something, that she was driving him crazy and he could not stand it. The defendant started to make love to the plaintiff's wife. She endeavored to resist, but she finally gave in and they had sexual relations. Thereafter she went home. She did not inform her husband of the facts until Christmas Eve 1951. She had requested the defendant to talk to her husband, and finally on Christmas Eve, according to her testimony, they had a talk with her husband with reference to obtaining a divorce which she desired and which the defendant also desired. The plaintiff stated that she could have a divorce, but that the custody of the children would be determined by the court. The plaintiff's wife then left the premises with her brother who lived in Kearney. Subsequently, she went to California and by corrspondence asked the plaintiff to forgive her. He finally agreed to talk the matter over the she returned. A reconciliation between the plaintiff and his wife was effected and she agreed to testify in behalf of the plaintiff in this law suit. The plaintiff had started divorce proceedings December 26, 1951, and on the same day brought this action. After the divorce proceedings were instituted, the defendant, at her request, promised to do the right thing by her and also by the children, but after consulting counsel, he would only talk to her in the presence of witnesses. After one such conversation, she never saw the defendant again. Other facts are adduced in the record which need not be enumerated.

The principal assignments of error for determination in this appeal may be summarized as follows: (1) The trial court erred in giving instruction No. 1 with its references to the allegations and claims as to alienation of affections. (2) The trial court erred in giving instruction No. 3 with its reference to instruction No. 1 which included the allegations regarding alienation of affections and informing the jury that they state briefly the issues which the jury were to consider in this case. (3) The trial court erred in giving instruction No. 9 by instructing the jury to find for the plaintiff if they found that the defendant committed the offense charged in the amended petition, thereby again referring to the allegations of alienation of affections, and again permitting the jury to consider the same.

This action was originally filed to recover damages for alleged alienation of affections and criminal conversation. A few weeks after the original petition was filed the plaintiff and his wife became reconciled. The plaintiff then filed an amended petition which we will subsequently refer to. During the trial of the case the plaintiff's attorney informed the court that his theory of the case was that since the reconciliation had been had between the plaintiff and his wife and they were living together, this confined the case to one of criminal conversation.

The amended petition filed by the plaintiff alleged the marriage of the plaintiff; that commencing on the first day of January 1950, and at many and divers intervals thereafter, the defendant wrongfully, willfully, wickedly, maliciously, and unjustly commenced an association with the wife of this plaintiff; that it was the intent and purpose of the defendant to seduce and to carnally know the wife of this plaintiff; and that with that object and purpose in mind the defendant did, on the first day of January 1950, and at numerous and divers intervals of time during the said year 1950, call at the home of the plaintiff and make love to the wife of the plaintiff, protesting that he loved her, wished to marry her and take her from the home of this plaintiff to California or some other state, taking with her the two smaller children of the plaintiff and his wife. The plaintiff further alleged that the defendant, with said purpose in mind, met the plaintiff's wife in Grand Island,...