Red Eagle v. Free

Citation130 P.2d 308,191 Okla. 385,1942 OK 362
Decision Date27 October 1942
Docket Number30579.
CourtSupreme Court of Oklahoma

Syllabus by the Court.

1. The gist of an action for alienation of the affections of a husband or wife is the loss of society, affection assistance, conjugal fellowship and consortium and evidence which reasonably tends to prove such loss is sufficient to sustain a verdict therefor.

2. In an action for alienation of affections the extent of damage to the injured party is a matter peculiarly within the province of the jury.

3. In cases of alienation of affections the rule governing the admissibility of evidence is to a certain extent sui generis.

4. Where instructions given by the court are substantially the same as those requested by a party and no particular vice in the instructions is shown the contention that they did not state the law as fully and explicitly as they should have is too general to present error.

5. An action for alienation of affections instituted within two years from the date of final separation of a husband and wife as a result of alleged acts of the defendant falls within the period of limitations and is not barred thereby.

Appeal from District Court, Osage County; Hugh C. Jones, Judge.

Action by Magdalene Free against Mae Red Eagle to recover damages for the loss of the affections of plaintiff's husband. Plaintiff had judgment and defendant appeals.


Tillman & Tillman, of Pawhuska, I. F. Long, of Hominy, and Kelly Brown, of Muskogee, for plaintiff in error.

T. F Dukes, of Hominy, for defendant in error.


Magdalene Free, hereinafter referred to as plaintiff, instituted this action on September 30, 1940, against Mae Red Eagle hereinafter referred to as defendant, to recover the sum of $40,000 as actual damages and the sum of $20,000 as punitive damages for the alienation of her husband's affections by the defendant.

Plaintiff in her petition alleged, in substance, that she and Melvin Free had intermarried March 14, 1931, and that said marriage had been reasonably happy for some time thereafter and of said union there was born one child about November, 1935 that the defendant Mae Red Eagle, a wealthy member of the Osage Nation, had made the acquaintance of plaintiff's husband sometime unknown to plaintiff and had begun and continued a course of conduct calculated to alienate the affections of plaintiff's said husband and to transfer the same to the defendant; that by gifts of money and clothes and by the extension of personal favors defendant had over a period of years succeeded in depriving plaintiff of her husband's affections and in acquiring the same for herself so that as a result on February 2, 1940, plaintiff's husband left her and took up his abode with the defendant and thereafter on September 23, 1940, filed an action for divorce against the plaintiff which action was then pending; that plaintiff had been obliged to seek aid of the courts to compel her husband to perform his obligations to plaintiff and their child and that defendant had gone to the assistance of plaintiff's husband by procuring bonds for him and in other ways and that by reason of all of said acts defendant had finally and completely alienated the affections of plaintiff's said husband and deprived plaintiff permanently of his society, assistance, conjugal fellowship and consortium. The answer of the defendant was a general denial. Upon the issues thus framed trial was had to a jury. The jury returned a verdict in favor of plaintiff and assessed her recovery at the sum of $5,000. Motion for new trial was overruled and defendant appeals.

As grounds for reversal of the judgment the defendant urges three propositions which may be thus summarized: (1) the verdict is without the support of any competent evidence; (2) the court erred in admitting incompetent evidence and in instructions given the jury; (3) the plaintiff's action was barred by the statute of limitations.

The defendant under her first contention urges, in substance that since plaintiff's evidence shows that her husband was a thoroughly worthless individual therefore she sustained no damage by being deprived of his companionship. In support of this novel and rather ingenious theory defendant cites 23 O.S.1941 § 96, which limits recovery for breach of an obligation to the amount which might have been gained by its performance; and, 23 O.S.1941 § 97, which requires that recovery of damages in any case shall be reasonable; and the cases of Shuler v. Viger, 123 Okl. 110, 252 P. 18 and Whitehead v. Gormley, 116 Okl. 287, 245 P. 562, 47 A.L.R. 171, which state the general rule that a verdict unsupported by competent evidence...

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