Overton v. Overton

• Decision Date: 04 May 1926
• Docket Number: Case Number: 16584
• Citation: 1926 OK 440,246 P. 1095,121 Okla. 1
• Parties: OVERTON v. OVERTON.
• Court: Oklahoma Supreme Court

1926 OK 440

246 P. 1095

121 Okla. 1

OVERTON v. OVERTON.

Case Number: 16584

Supreme Court of Oklahoma

Decided: May 4, 1926

Syllabus

¶0 1. Husband and Wife--Action for Alienation of Husband's Affections--Statute of Limitations.

In an action brought by a former wife to recover for the alienation of her husband's affections, where it appears that the husband did not separate from his former wife until after she filed her petition for divorce on November 16, 1922, and action was brought for alienation of his affections on November 15, 1924, the statute of limitations is not a bar; the plaintiff was not limited in her proof to the one day's interval between November 16th and November 15, 1922, if otherwise relevant.

2. Same--Presumption of Duration of Affection till Separation.

It will be presumed that the plaintiff's husband had affection for her up to the time of separation, in the absence of evidence to the contrary.

3. Same--Damages--Evidence Admissible to Show Pecuniary Condition of Party.

In an action by a wife for alienation of her husband's affections, where the plaintiff sought to show the financial condition of defendant for the purpose of increasing exemplary damages, held, the will of defendant's deceased husband showing defendant was a beneficiary was not improperly admitted.

4. Same--Proper Instruction on Theories as to Means of Alienation.

When an instruction is given in an action for alienation of affection of a spouse subjunctively presenting for the guidance of the jury a theory of alienation by sexual intercourse and a theory of alienation by insidious wiles, etc., and there is evidence to support both theories, such instruction is not error.

5. Same--Excessive Damages.

An award of $ 150,000 damages for alienation of affections of plaintiff's husband is excessive under the facts of this case and will be reversed and a new trial awarded unless plaintiff files a remittitur in the sum of $ 90,00 on entry of judgment.

Error from District Court, Tulsa County; O. H. Searcy, Assigned Judge.

Action by Ann Overton against Ellen Overton for the alienation of the affections of C. H. Overton, husband of plaintiff. Judgment for plaintiff, from which defendant appeals. Affirmed on condition of remittitur.

Biddison & Campbell, for plaintiff in error.

Moss & Farmer and T. G. Chambers, Jr., for defendant in error.

RILEY, J.

¶1 This cause presents an appeal from the judgment of the district court of Tulsa county wherein the defendant in error, Ann Overton, sustained a judgment in the sum of $ 150,000 ($ 30,000 of which amount was exemplary) against the plaintiff in error, Ellen Overton, for the alienation of the affections of C. H. Overton, husband of the former. References to the parties are hereafter made as they appeared below.

¶2 The plaintiff and C. H. Overton were married in 1906, and of this union two children were born, Tom and Margaret, who were of the age of 17 and 12, respectively, at the time of the institution of this action. Plaintiff and her husband were long residents of Tulsa, happily situated, and they accumulated considerable property by their joint industry, which property in a divorce decree hereinafter mentioned was found to be in the approximate value of a quarter million dollars.

¶3 The plaintiff became aware of defendant's association with C. H. Overton on November 4, 1921, in a conversation over the telephone between the defendant and Overton, and on the next day the plaintiff requested the defendant to give up her attentions to Overton, which request the defendant refused. The defendant thereafter called Overton by telephone and came in person to the Overton home and there threatened to kill the plaintiff. Thereafter occurred various escapades and rendezvous between Overton and defendant centered about various apartments in Tulsa and extended to Oklahoma City.

¶4 On November 16, 1922, plaintiff filed her petition against Overton for divorce.

¶5 It appears from the testimony of plaintiff that Overton remained at his home with his family "practically all the time" until after the petition for divorce was filed on November 16, 1922. (R. p. 63.)

¶6 There was corroborated testimony that Overton returned to his home on Christmas, 1922, with gifts for all of his family; that he discussed with plaintiff the dismissal of her petition for divorce and promised to give up his association with defendant. The plaintiff and Overton were divorced by decree on April 27, 1923. Overton and defendant were married the following November, and Overton departed this life May 19, 1924. The case at bar was begun on November 15, 1924.

¶7 It appears from the evidence that defendant Ellen Overton's maiden name was Blackston; she claimed a common-law marriage with one Wright, deceased, yet, to the contrary, she testified that she had never been married before her relation with Overton. The evidence shows that without marriage she assumed various convenient names, and that prior to her marriage with Overton and during her residence in Tulsa her livelihood was secured without sweat of her brow.It is contended by the defendant that plaintiff's cause of action was barred by the statute of limitation.

¶8 The gist of an action for alienation of affections is the loss of society, affection, assistance, conjugal fellowship and consortium. Brown v. Brown, 104 Okla. 206, 230 P. 853; Farneman v. Farneman, 46 Ind. App. 453, 90 N.E. 775 91 N.E. 968; Murray v. Postal T. & C. Co., 210 Mass. 188, 96 N.E. 316, Ann. Cas. 1912C, 1183. The statute of limitations begins to run in such cases from the date of the loss of consortium (Wolle v. Luckenbach, 26 Pa. Dist. 907), which, as stated in 30 C. J. 1128, may be when plaintiff separates from the alienated spouse.

¶9 In Bockman v. Ritter (Ind. App.) 21 Ind. App. 250, 52 N.E. 100, where it was contended that the damage was accomplished more than two years before the commencement of the action, the contention based upon the complainant's statement "that about four years ago the defendant began to poison the mind of the appellee's wife," it is said:

"But it appears from the complaint that the injurious consequence of the appellant's wrongful conduct for which the appellee sought damages was not fully accomplished until the wife left her home and the appellee and declared she would not live with him longer. This was on September 12, 1896, which was less than two weeks before commencement of the action. That it required four years of wrong to accomplish this result cannot operate to the benefit of the wrongdoer."

¶10 Likewise, in the case of Wolle v. Luckenback, supra, where in the state of Pennsylvania a statute of limitation of six years applied and where in the action brought by a husband to recover for the alienation of his wife's affection, and where it appeared that the plaintiff separated from his wife on July 25, 1909, and suit was brought on July 23, 1915, it was held that the statute of limitation was not a bar to the action and that the plaintiff was not limited in his proof to the two days' interval between July 23, and July 25, 1909, provided the proof was otherwise relevant.

¶11 The statute of limitation began to run from the time when the cause of action herein accrued, no exceptions being pleaded. Generally a cause of action accrues at the moment the party owning it has a legal right to sue, except wherein extrinsic facts are interposed which would postpone the operation of the statute.

¶12 The gist of the cause of action herein has been said to be the loss of consortium of the husband. More or less of a complete loss of this is shown to have occurred at the time the husband left his home and severed his marital relations with the plaintiff. It is shown by the undisputed testimony of plaintiff that this loss occurred after the filing of the petition for divorce on November 16, 1922, and since the action herein was filed within one day of two years thereafter, without considering the effect of the return of the husband on Christmas of 1922, and his fleeting promise of breaking off with the defendant, and without considering a new enticement by the defendant, if any, we hold that the statute of limitation is not a bar to the action herein presented. Mohn v. Tingley et al. (Cal.) 191 Cal. 470, 217 P. 733.

¶13 This we hold, notwithstanding the contention of defendant's counsel that there is not one scintilla of testimony as to any action of defendant later than some days prior to the filing of the petition for divorce, for the damage for which relief is sought was not fully accomplished until the husband permanently left plaintiff's home. It is the latent wrong theretofore committed which evidenced itself at the date of the complete loss for which plaintiff seeks her remedy and not for continuing wrongful acts thereafter. When the wrong was evidenced by the loss, the cause of action was complete, the statute of limitation began to run, and additional wrongful acts, if any, are of no consequence so far as this action is concerned.

¶14 Nor do we intend laying down a rule that the aggrieved spouse, in order to maintain such a suit, must be wholly abandoned in the literal sense and separated from the erring one with or without a decree of divorce as a price of redress...