Pugsley v. Smyth

• Citation: 194 P. 686,98 Or. 448
• Parties: PUGSLEY v. SMYTH.
• Decision Date: 04 January 1921
• Court: Oregon Supreme Court

194 P. 686

98 Or. 448

PUGSLEY v. SMYTH.

Supreme Court of Oregon

January 4, 1921

In Banc.

Appeal from Circuit Court, Harney County; Dalton Biggs, Judge.

Clifford D. Pugsley sued Fred W. Smyth for damages for alienating his wife's affections. A trial resulted in a verdict and judgment for Pugsley. Smyth appealed. Reversed and remanded.

One assignment of error is based upon the refusal of the trial court to direct a verdict for the defendant, and for that reason an extended statement of the evidence given at the trial becomes necessary.

The plaintiff and his wife were married in about the year 1909. There are two children; a daughter aged ten years and a son aged seven years.

The defendant and his "people" live at Diamond, in Harney county. During most of the period of the plaintiff's married life he has been employed by "the Smyth people," and according to the testimony of the plaintiff, he was so employed "off and on for, I think, about nine years." Both the plaintiff and his wife lived at "the Smyth place" when he was "employed by them." The plaintiff says that he and his wife lived happily together until the summer of 1919. Pugsley stated that "starting in the summer of 1919" he observed that his wife and the defendant "were going about a great deal together," and "were about together a great deal by themselves." Pugsley cites one time when at a dance Smyth "danced every other dance with her." In this connection it is appropriate to call attention to the testimony of Mrs Bradburn, a sister of the plaintiff, who resides at Diamond and during portions of 1919 was employed "at the Smyth ranch." Mrs. Bradburn testified that--

In May "we was camped down below" the Smyth house "and my little nephew Norris came down to the camp ond told me that his mother said he could stay a couple of hours to play with the children, the girls. I was on my way up to the ranch to send a letter. * * * I went on in the front room (of the Smyth house); supposed Nora (Mrs. Pugsley) was around. I played a record on the graphophone; stayed there a little while, thinking she would come in. Pretty soon Fred (Smyth) came down the stairs. I asked him where Nora was. He said he didn't know, and I played another record and Nora hollered down to me from upstairs and told me to come on up and she said, 'Why, I didn't know who that was playing;' and I went on up."

The plaintiff says that he did not become aware of any relationship between his wife and Smyth until the 13th or 14th of July, 1919, when he found in her pocket a note which Smyth had written to her. The plaintiff "left that night," but he afterwards returned and "tried to talk her into the notion of leaving the Smyths entirely and going away, * * * and she finally consented to go. We was going up to Pendleton and work through harvest." The plaintiff and his wife then "came up to Burns," where they stopped "a couple of days" at the Levens Hotel. They did not go on to Pendleton, however, for the reason that Mrs. Pugsley refused to "go on any further." In the language of plaintiff:

"She told me that she couldn't go away and leave him; she thought more of him than she did of me and I might as well just go on. * * * She told me all of her plans. * * * She explained to me how that she was going to get Fred. They was going away to live very happily. I asked her, I says 'How are you going to pull anything like that with Lenora (Fred's wife)?' and she said Fred would have that fixed up. * * * She told me that--to go ahead and get my divorce; * * * that she didn't care anything for me any more."

The plaintiff also testified that his wife told him "that her relations with Fred Smyth had been improper," and that "the relations between her and Mr. Smyth were adulterous." It is clear from the transcript that the statement ascribed to Mrs. Pugsley to the effect that her relations with Smyth "had been improper" was made by her, if at all, in July, while they were stopping in the Levens Hotel at Burns; but it is not entirely clear whether the other statement about their relations having been adulterous was made at this time in July or a month later when he returned to Burns from Prairie City in response to a telephonic request from his wife, although it is probably a fair inference to say that this statement was also made in July rather than in August.

The plaintiff then left Burns and "went on to Prairie City," and his wife "went back to Diamond." At the suggestion of Mrs. Pugsley, the plaintiff took the son with him. After the plaintiff had been in Prairie City about a month his wife "phoned there and wanted me to fetch the boy back." The plaintiff thereupon went to Burns and met his wife there. Mrs. Pugsley was stopping in the Levens Hotel, and she and the plaintiff stayed together in the hotel over night. While in her room at the hotel the plaintiff looked in her suit case and found a photograph of Smyth and a note written by Smyth to Mrs. Pugsley as follows:

"Hello there: Say I was coming up anyway. Yes; I'll sure be there. It might be kind of late for I have to kill a beef first see but I'll sure come to-night. Good-bye."

Notwithstanding the disclosures made by his wife and the finding of the note and photograph, the plaintiff claims that he did "everything I could to get her to come back and live with me." As a result of this meeting at Burns the plaintiff and his wife "went back out to Diamond;" and he says that--

He "kept trying to get her in the notion of going away and getting out of the country, you see, and forgetting all about this thing. * * * I kept coaxing her to go. Finally she said she would go away and see how we could get along."

After they had been in Diamond about a week, the husband and wife started for Idaho. They went to Crane by automobile and there stayed together over night, and on the following day they boarded a train. They had proceeded on their way as far as Ontario and there they discussed their troubles with a lawyer, who advised them to forget the past and resume living together. They then "got a room" in a hotel. Pugsley states:

"When we got up in the room she just came right out and said that she wouldn't go any further with me; she was done; she couldn't forget this bird and she was going back with him."

The next day Mrs. Pugsley returned to the vicinity of Diamond and shortly afterwards her husband also returned to the neighborhood of Diamond and there found employment "at the Diamond ranch." After going to this ranch the plaintiff made a trip "to Diamond," and as he was "coming back" he saw his wife and Smyth "in the lane together." At some time, not disclosed by the record, Pugsley left the Diamond ranch and went to Winnemucca, and subsequently he left Winnemucca and again went to Burns, arriving there about November 20, 1919. In the meantime his wife had gone to Burns. Upon reaching Burns on about November 20th, Pugsley found his wife sick, the children not feeling good, and they were "about broke." Pugsley supplied his wife and children with money until February 1, 1920, and then, to use his language, "she came out where I was working out to the island," and he also says that she lived with him at the island "right up till lately." The plaintiff declares that after his wife came to him at the island he "talked it over, but she says she don't like me like she used to or like she ought to."

The plaintiff and his wife were living together in Burns at the time of the trial, which occurred in April, 1920, and although the plaintiff stated that on account of the children he was anxious to effect a complete reconciliation, nevertheless, her feelings toward him were not as they were before 1919, and his feeling toward her "is not as good as it was a long time ago, hardly as good."

On redirect examination the plaintiff was asked: "Since you discovered her relationship with Mr. Smyth, has she at various times asked you to leave and go away by yourself?" And he answered thus: "Yes, sir." The next question and answer were as follows:

"Q. What would she say about Fred Smyth providing her with a home or with money or automobiles or things of that kind? A. Well, she said he promised to provide her with anything that she wanted, as far as money would buy. I believe she said one time he was going back down to Corvallis to go to school and she was going to go down there, and I don't know whether she would keep house for him or not, but he was going to buy him a new roadster and she would have all the use of that she wanted and they was going to be very happy."

Charles Fraser, whose wife is a sister of Mrs. Pugsley, testified that "during the first days of August (1919) some time" Mrs. Pugsley, who had been staying at his house "a couple or three days," asked him if he "cared if she had a caller one evening," and that on that evening Smyth called upon her. Lucille Fraser, the daughter of Charles Fraser, told about carrying notes from Mrs. Pugsley to Smyth and from Smyth to Mrs. Pugsley during the time in August when Mrs. Pugsley was staying at the Fraser home in Diamond.

Mrs. Bradburn, a portion of whose testimony has already been recounted, also testified that she recalled the time when the plaintiff and his wife left the Smyth place on account of the letter discovered by him; that she remembered that several days after leaving the Smyth place Mrs. Pugsley returned and was "a frequent visitor there at the Smyth ranch"; that one evening Mrs. Pugsley "came over to the ranch" and the witness saw Mrs. Pugsley in company with Smyth go by the witness' camp "towards the barn," and at the end of 20 or 30 minutes "they came back to the house." Mrs. Bradburn also testified that--

After Mrs. Pugsley "came back" she "told me that Fred was in love with her;...