Powers v. Sumbler

• Decision Date: 09 July 1910
• Docket Number: 16,072
• Parties: ELLA M. POWERS, Appellant, v. NORA SUMBLER, Appellee
• Court: Kansas Supreme Court

110 P. 97

83 Kan. 1

ELLA M. POWERS, Appellant, v. NORA SUMBLER, Appellee

No. 16,072

Supreme Court of Kansas

July 9, 1910

Decided July, 1910.

Appeal from Republic district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ABATEMENT OF ACTION--Death of a Party. Under section 421 of the old code (Code 1909, § 418), providing that no action pending in any court shall abate by the death of either or both of the parties thereto except certain actions therein named, an action by a wife for the alienation of her husband's affections does not abate by her death while the action is pending in the supreme court.

2. EVIDENCE--Inspection or Copy of Documents--Demand--Order--Admissibility of Original. Where the defendant, proceeding under section 369 of the old code (Code 1909, § 366), demands of the plaintiff an inspection and permission to make copies of certain letters which the plaintiff intends to offer in evidence at the trial, no order of the court is necessary requiring the plaintiff to comply with such demand; and where the demand is not complied with no error is committed in sustaining an objection to the admission in evidence of the original of which a copy has been refused.

3. ALIENATION OF AFFECTIONS--Grounds for Action. In an action by the wife against a stranger to recover damages for the alienation of the affections of her husband the court correctly charged that in order for the plaintiff to recover it was necessary to show that it was the efforts of the defendant which were the controlling cause that destroyed the affection which the plaintiff's husband had for her and caused their separation, and that the acts of the defendant were done knowingly and intentionally, for the purpose of alienating the husband's affections.

4. ALIENATION OF AFFECTIONS--Defendant Must Have Acted Knowingly and Intentionally. In an action by the wife against a stranger to recover for alienation of the affections of her husband an instruction which omits the qualification that the defendant must have acted knowingly and intentionally was properly refused.

5. ALIENATION OF AFFECTIONS--Adultery--Pleadings--Instructions. In such an action, where there is no averment in the petition charging adultery, either as one of the means of alienation or as a basis for damages, an instruction was properly refused which charged that if the defendant was in no way responsible for the alienation of the affections of the husband, yet if the jury believed that the defendant committed adultery with the husband while the plaintiff and her husband were living together as husband and wife they should find for the plaintiff.

Hugh Alexander, and N. J. Ward, for the appellant.

B. T Bullen, and W. D. Vance, for the appellee.

OPINION

PORTER, J.:

Ella M. Powers sued the defendant for damages for the alienation of her husband's affections. There was a trial by a jury and a verdict and judgment in favor of the defendant. While the action was pending here on appeal the plaintiff died, and the action has been revived in the name of her personal representatives. The defendant has filed a motion to dismiss on the ground that the action, being in tort, is not one which survives. The motion to dismiss must be denied. The code provision which controls reads in part:

"No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution for a nuisance, or against a justice of the peace for misconduct in office." (Civ. Code, § 421, Gen. Stat. 1901, § 4870, Code 1909, § 418.)

There is a claim that the action survives because it is "for an injury to the person," within the meaning of section 420 of the old code (Code 1909, § 417), providing that in addition to the causes of action which survive at common law those "for an injury to the person" survive, but this contention can not be sustained, for the reason that the language used in that section refers to physical injuries. The cause of action survives, however, under the provisions of section 418 of the code of 1909, because it was pending in court at the time of the death of the plaintiff. The only actions which abate by the death of either or both of the parties when the action is pending are those which are specifically mentioned in section 418.

During the progress of the trial the plaintiff offered in evidence a letter or fragment of a letter which she claimed was written by the defendant to the plaintiff's husband. She testified that she found the paper in her husband's suit case, and that she knew it to be in the handwriting of the defendant. It was not addressed to any person nor signed by anyone, and the trial judge stated that he was unable to read it intelligently. The objection to its introduction was sustained partly on that ground and partly on the ground that the plaintiff had failed to comply with a demand made by the defendant before the trial for an inspection and permission to make copies of any letters or other written communications which purported to have been written by the defendant to the plaintiff's husband. The notice was a formal one, obviously given under the provisions of section 369 of the old code (Code 1909. § 366), which reads as follows:

"Either party or his attorney if required shall deliver to the other party or his attorney a copy of any deed, instrument or other writing whereon the action or defense is founded, or which he intends to offer in evidence at the trial. If the plaintiff or defendant shall refuse to furnish the copy or copies required, the party so refusing shall not be permitted to give in evidence at the trial the original of which a copy has been refused."

The plaintiff claims that it was error to exclude the evidence because no order was obtained from the court or judge requiring compliance by the plaintiff with the demand. Where the party desiring the inspection of a paper or permission to take a copy proceeds under section 368 of the old code (Code 1909, § 365) and obtains an order of the court requiring compliance with the demand the trial court or judge may, upon refusal to produce, exclude the paper or document from being given in evidence, or, if the party...