Rank v. Kuhn

• Decision Date: 16 October 1945
• Docket Number: 46664.
• Citation: 20 N.W.2d 72,236 Iowa 854
• Parties: RANK v. KUHN.
• Court: Iowa Supreme Court

20 N.W.2d 72

236 Iowa 854

RANK v. KUHN.

No. 46664.

Supreme Court of Iowa

October 16, 1945

Alan Loth, of Fort Dodge, for appellant.

Paul E. McCarville, of Fort Dodge, for appellee.

GARFIELD Justice.

Plaintiff and Francis Rank were married September 10, 1930. They have a daughter, eleven. Defendant, age 42, a widow, is a sister of Francis' mother. Francis is 34. Defendant owns a life estate in a quarter section farm 3 1/2 miles east of Fort Dodge where she lives. In April, 1942, defendant leased a part of the farm to Francis' brother, Louis, who occupied the small tenant house on the farm for about 11 months. In the fall of 1942, a controversy arose between defendant and Louis which resulted in the commencement of an ejectment suit against him by defendant. Louis and family were ejected from the farm in March, 1943. Plaintiff's husband, Francis took the side of defendant in this controversy and a fist fight took place between the two brothers.

While Louis was occupying the tenant house on the farm, Francis and his family were living in Fort Dodge. Shortly after Louis left the tenant house, Francis, his wife and daughter moved in under an arrangement whereby Francis was to operate defendant's farm. Francis and his wife separated July 11 1943, and the latter brought this action against defendant for alienation of her husband's affections. Following trial to the court without a jury, judgment for plaintiff for $2700 was entered. Defendant has appealed.

I. Trial commenced September 7, 1943. Rule 179(a), Rules of Civil Procedure, effective July 4, 1943, provides: 'The Court trying an issue of fact without a jury * * * shall find the facts in writing, separately stating its conclusions of law and direct an appropriate judgment.' Apparently in an attempt to comply with this new rule, the court filed its 'Findings, Conclusions and Judgment' which fills about eight pages of the record. Defendant's first contention is that the findings do not support the judgment because there is no finding that defendant intended to alienate the affections of plaintiff's husband. The contention is without merit.

The court's findings state in part:

'After the most careful consideration of this case, I am of the opinion that plaintiff, without fault on her part, has been done a great injustice, and I cannot avoid the conclusion that defendant was guilty of such misconduct in her associations with plaintiff's husband as to be the main cause of the final break-up between plaintiff and her husband. * * * The fact that plaintiff's husband was faithless to his wife and was blamable along with defendant for the wrong done plaintiff, does not relieve defendant of her liability. * * *

'From the foregoing considerations my findings of fact and conclusions of law are: 1) Plaintiff has established her charge that defendant was guilty of wrongful association and intimacies with plaintiff's husband during the time in controversy. 2) That defendant knew her associations with plaintiff's husband was causing trouble and discord between them. 3) As a result of defendant's misconduct in the respects charged plaintiff has lost the affection, care and companionship of her husband. * * *

'Upon the basis of the foregoing findings my conclusion is that plaintiff is entitled to recover damages against defendant for the injuries sustained.'

It is well settled that findings of a trial court are to be broadly and liberally construed, rather than narrowly or technically. In case of doubt or ambiguity, findings will be construed to uphold, rather than to defeat, the judgment. In re Estate of Evans, 228 Iowa 908, 918, 291 N.W. 460; 5 C.J.S., Appeal and Error, § 1656b, p. 686; 3 Am.Jur. 462, 463, sections 897, 898; 64 C.J. 1272, section 1149. Wherever, from the facts expressly found, others may fairly be inferred which will support the judgment, such inference will be drawn. 64 C.J. 1279, section 1156. See also 5 C.J.S., Appeal and Error, § 1656e, p. 696. We have held that in construing a decree the intent of the court must be determined from all parts of the instrument and effect given to that which is clearly implied as well as to that which is expressed. Weir & Russell Lbr. Co. v. Kempf, 234 Iowa 450, 12 N.W.2d 857, 860.

It is frequently said that an action for alienation of affections is for an intentional tort (Heisler v. Heisler, 151 Iowa 503, 506, 131 N.W. 676) and will lie only where the spouse's affections are purposely or intentionally alienated. See 27 Am.Jur. 129, section 527; 42 C.J.S., Husband and Wife, § 662, p. 317; 3 Restatement of Torts, section 683. If it were necessary, in order to support the judgment, to hold that a finding of such purpose or intent is fairly to be inferred from the court's findings 'of wrongful association and intimacies' and 'misconduct,' we believe we would be justified in so doing. But we think the findings as made are sufficient.

The three essential elements of such a cause of action as this are: 1) Wrongful conduct of the defendant; 2) loss of affection or consortium; and 3) causal connection between such conduct and loss. 27 Am.Jur. 125, section 523. An actual intent to alienate is not necessary if defendant's conduct is inherently wrong and tends to and does have the effect complained of. Bailey v. Kennedy, 148 Iowa 715, 716, 126 N.W. 181 (Evans, J.); 42 C.J.S., Husband and Wife, § 662, p. 317. See also Welty v. Sparks, 179 Iowa 1390, 1391, 1393, 162 N.W. 614 (Weaver, J.), where it is said it must appear that defendant 'willfully, wrongfully, or intentionally, induced such alienation.' We there held the evidence 'in no manner tends to show that such alienation, if any, was chargeable to any wrongful act done or wrongful influence exercised by the defendant.'

In Smith v. Rice, 178 Iowa 673, 677, 678, 160 N.W. 6, 7, we say that plaintiff must prove 'such loss (of affections) was caused by the wrongful conduct and inducement of the defendant.' In Pooley v. Dutton, 165 Iowa 745, 750, 147 N.W. 154, 156, it is said that defendants can be made liable only by a showing the loss of affections 'has been caused by wrongful and malicious interference on [defendants'] part.' In Busenbark v. Busenbark, 150 Iowa 7, 17, 18, 129 N.W. 332, we say in effect that plaintiff must prove defendants' 'wrongdoing' caused the loss of affection. See also Price v. Price, 91 Iowa 693, 698, 60 N.W. 202, 29 L.R.A. 150, 51 Am.St.Rep. 360.

In this connection, we may observe that after the court's findings were filed defendant filed a motion under Rule 179(b), Rules of Civil Procedure, asking that the findings be amended and made more specific in some fourteen respects. But the court was not asked to make a more specific finding on the question of defendant's intent. Nor did defendant's motion for new trial state that the findings did not support the judgment because of failure to find that defendant acted intentionally. Even though it was the court's duty under Rule 179(a) to find the facts, the circumstances just mentioned would seem to be worthy of some consideration in determining the sufficiency of the findings.

II. Defendant next contends that plaintiff's petition states a cause of action for criminal conversation, not for alienation of affections, and since the court found the evidence insufficient to prove sexual relations between defendant and plaintiff's husband, there could be no recovery.

We think the petition states a cause of action for alienation of affections. We have already set out the essential elements of such an action. The gist of the action of criminal conversation is adultery between the defendant and plaintiff's spouse. Newcomer v. Ament, 214 Iowa 307, 310, 242 N.W. 82, and cases cited. Both causes of action belong to the same class, arise from the marriage relation, and seek damages for loss of consortium. 27 Am.Jur. 136, 137, section 536; Gross' Adm'r v. Ledford, 190 Ky. 526, 228 S.W. 24, 14 A.L.R. 689, 692.

A cause of action for alienation of affections does not necessarily, though it may, involve a loss of affection through adulterous relations. 27 Am.Jur. 136, section 536. In an alienation suit, although not essential to recovery, adultery between defendant and plaintiff's spouse may be shown in aggravation of damages. 42 C.J.S., Husband and Wife, § 693, p. 348; 27 Am.Jur. 146, section 545; 3 Restatement of Torts, section 683, Comments c and k. It is therefore entirely proper to include in a petition for alienation of affections, by way of aggravation, an allegation of adultery. It may fairly be concluded that is what was done here. The applicable principle here bears some analogy to the rule that a petition for breach of promise to marry may include an allegation of seduction in aggravation of damages. See Geiger v. Payne, 102 Iowa 581, 585, 69 N.W. 554, 71 N.W. 571; Nolan v. Glynn, 163 Iowa 146, 158, 142 N.W. 1029, Ann.Cas.1916C, 559; Freed v. Carlson, 196 Iowa 961, 964, 195 N.W. 723; 11 C.J.S., Breach of Marriage Promise, § 43c, p. 812.

The petition here is in a single count. It alleges that: From the time of the marriage to the happenings complained of, there existed between plaintiff and her husband the usual affection of wife and husband; plaintiff and her husband lived happily together; the events of July 11, 1943, when the parties separated, were the culmination of a long series of acts by defendant in an effort to alienate plaintiff's husband and break up their home. This is followed by a recital of such acts by defendant, which fills about a page and a half of the record. Nothing is said in this recital regarding adultery. This is followed, however, by a brief allegation that during all of said time defendant has been guilty of illicit relations with plaintiff's husband.

No attack was made on...