Roe v. Roe

• Citation: 145 N.E. 804,315 Ill. 120
• Decision Date: 16 December 1924
• Docket Number: No. 16101.,16101.
• Parties: ROE v. ROE et al.
• Court: Supreme Court of Illinois

315 Ill. 120

145 N.E. 804

ROE

v.ROE et al.

No. 16101.

Supreme Court of Illinois.

Dec. 16, 1924.

Error to Appellate Court, Third District, on Appeal from Circuit Court, Edgar County; Augustus A. Partlow, Judge.

Action by Delia Roe against Sarah E. Roe and husband. Judgment for plaintiff was affirmed by the Appellate Court, and defendants bring certiorari.

Affirmed.

O'Hair & McClain, of Paris, and George B. Gillespie, of Springfield (George M. Gillespie and Thomas E. Gillespie, both of Springfield, of counsel), for plaintiffs in error.

Stewart W. Kincaid, of Paris, and James G. Allen, of Decatur, for defendant in error.

FARMER, J.

This is an action by Delia Roe against Sarah E. and William R. Roe, for damages. The parties will be referred to as plaintiff and defendants. Defendants are mother and father of plaintiff's husband, Fred Roe, to whom she was married November 1, 1919. The first two counts of the amended declaration charge defendants maliciously and wantonly assaulted and struck plaintiff, and also threw her with great force and violence against the wheel of a cultivator. The third and fourth counts charge defendants wrongfully and maliciously, by divers means, alienated the affections of plaintiff's husband and caused their separation. The case was tried by jury, and plaintiff had judgment for $4,500. Defendants appealed to the Appellate Court, and that court affirmed the judgment. The petition of defendants for certiorari was granted by this court, and the record is brought here for review.

It is agrued by defendants that the verdict and judgment were contrary to the preponderance of the evidence, and that the Appellate Court erred in not reversing the judgment with a finding of facts. Such action of the Appellate Court could only be justified where there was no legitimate evidence tending to prove the cause of action. Mirich v. Forschner Contracting Co., 312 Ill. 343, 143 N. E. 846. It is undeniable that plaintiff's proof tended to support the cause of action. It is true the evidence was conflicting, but it was for the jury to determine its weight and credibility, and in such a case, where the judgment is affirmed by the Appellate Court, this court cannot reverse the judgment of the Appellate Court, if we should be of opinion it was not supported by a preponderance of the evidence. Scovill Manf. Co. v. Cassidy, 275 Ill. 462, 114 N. E. 181, Ann. Cas. 1918E, 602, and cases cited. We shall not enter upon the useless task of setting out and analyzing the evidence of the respective parties, further than to say, if the evidence on behalf of plaintiff is to be believed,the charges in the declaration, including the assaults on the plaintiff by defendants,were sustained. If the testimony on behalf of defendants is believed, the contrary might be true. It is certain this court could not reverse the judgment because it is contrary to the preponderance of the evidence.

Defendants assign as error the action of the court in giving plaintiff's second and third instructions. The second instruction told the jury, if they found from a preponderance of the evidence that the affections of plaintiff's husband for her were destroyed, and that the acts and conduct of defendants were the controlling cause, and without such conduct his affections would not have been alienated, then plaintiff was entitled to recover, although there might have been other causes contributing to the same result. The third instruction told the jury that it was not essential to plaintiff's right of action against defendants that their conduct was the sole cause of the alienation of her husband's affections, but if the jury believed from a preponderance of the evidence that plaintiff's husband's affections were alienated, and that the acts and conduct of defendants were the controlling...