Sandler v. Schmidt

• Decision Date: 14 December 1953
• Docket Number: No. 2,No. 43291,43291,2
• Citation: 263 S.W.2d 35
• Parties: SANDLER v. SCHMIDT
• Court: Missouri Supreme Court

Page 35

263 S.W.2d 35

SANDLER v. SCHMIDT.

No. 43291.

Supreme Court of Missouri, Division No. 2.

Dec. 14, 1953.

J. Grant Frye, Cape Girardeau, for appellant.

Leo J. Rozier, Perryville, Dearing & Matthes, M. C. Matthes, Hillsboro, for respondent.

TIPTON, Judge.

In the circuit court of Perry County, Missouri, the appellant filed her petition in two counts. Count I was based on criminal conversation of respondent with appellant's husband, and count II was for alienation of his affections. Respondent's answer pleaded an affirmative defense. Briefly, it was that appellant and her husband, Harry Sandler, entered into a conspiracy, scheme and unlawful plan for the purpose of wrongfully obtaining money from respondent, and that the suit instituted by appellant was the result of the unlawful and wrongful plan, scheme and conspiracy. The jury returned a verdict for respondent on both counts.

The evidence on behalf of appellant tended to show that appellant and Harry Sandler were married in September, 1921, and had two sons. In April, 1950, appellant found respondent's picture in her husband's billfold. She had noticed for some time prior to finding the picture that her husband seemed cold and indifferent to her, although she 'tried to be nice to him' and she still loved him. For a while Sandler worked in St. Louis during the week but he bEgan to stay there often over weekends and made various excuses for his failure to come to his home, which was near Perryville. Appellant tried to discuss with him the presence of respondent's picture in his billfold but he told her it was none of her business. For a year after the finding of the picture 'he didn't want anything to do with' her and did not have intercourse with her, though they slept in the same bed. In later conversations about respondent, he was discourteous and disrespectful toward appellant. He asked her to get a divorce but she refused. He finally promised appellant that 'he would go up to St. Louis and have it out with her (respondent), and he then asked me to forgive him and I did.' The relationship between appellant's husband and respondent became known in appellant's community and greatly embarassed her. Although appellant and her husband settled their troubles by resuming normal marital relations in the fall of 1950, she was still embarrassed and hurt over the affair and by the publicity.

Sandler testified he had sexual intercourse with respondent on various occasions during a two-year period or more prior to the time the appellant filed her petition in this case. He also testified that he and respondent had lived together as husband and wife in several places in St. Louis, and that he had gone on overnight fishing and hunting trips with her. These facts were confirmed by several witnesses.

Although present at the trial, the respondent did not testify. However, her father and mother, Everett and Josephine Phillips, did testify in her behalf.

Everett Phillips testified that in September, 1950, respondent came to his home. She had bruises on her body and he called Sandler to come to witness' home. At that time Sandler admitted that these bruises were the result of the manner in which he had held respondent. While there he wrote a note in which he stated, 'I Harry Sandler promise Ethel Phillips [Schmidt] that I never will cause her any trouble in love affairs any more from this date on and that I am sorry that we had to have any misunderstanding and that we will be friends from now on.' Everett Phillips testified that after the above statement was signed, Sandler said that 'his wife would get everything they both had,' meaning respondent and her husband, whom she had married a short time before. Later, he again talked to Sandler concerning a note held by witness and his wife and executed by appellant, Harry Sandler and their son, Rober. He stated that Sandler on that occation said that if the Phillipses did file suit on the note, 'there would be trouble.' Josephine Phillips' testimony was similar to that of her husband.

It is conceded that on April 12, 1950, the Sandlers borrowed $1,150 from Mr. and Mrs. Phillips and a note was executed by appellant, Harry Sandler and their son, Robert, to evidence this indebtendness, and that prior to the institution of the case at bar, the Phillipses filed suit in the circuit court of Perry County to obtain a judgment on this note. An answer was filed on behalf of the Sandlers by the same attorney who now represents the appellant in this case, a part of which is as follows: 'They say that the note was given pursuant to a conspiracy between plaintiffs, Mr. and Mrs. Phillips and one Ethel M. Schmidt, who was at that time enamored of defendant Harry Sandler and was attempting to cause him and defendant, Elsie Sandler, his wife, to be separated, and the note was a mere pretext for the purpose of making a transfer of the assets of defendants indirectly to said Ethel M. Schmidt, through the aid of the plaintiffs, and that none of the defendants received any befefit from the transaction.'

Later, the Phillipses obtained a judgment against the Sandlers in the note suit. Sandler testified the judgment was paid because it was a just debt. However, when his deposition was taken in the note case he refused to testify on the ground that 'I might incriminate myself.' When he was testifying in this case, he was asked what caused him to change his mind as to the matter of self-incrimation between the time his deposition was taken in the note suit and the date of trial in this case. His answer was, 'because I had time to think over what it was done about, what for.'

Other essential facts will be stated in the course of this opinion.

We will review appellant's assignments of error as shown by her 'points and authorities,' but will treat as abandoned assigned errors that appear only in her printed argument. Scott v. Missouri Pac. R. Co., 333 Mo. 374, 62 S.W.2d 834; Gelhot v. Stein, Mo.Sup., 174 S.W.2d 174.

Appellant's assignments of error I and IV are that the trial court erred in giving instruction number 4. This instruction reads as follows: 'The Court instructs the jury that in order to entitle plaintiff to maintain this action insofar as alienation of affections is concerned, the plaintiff must show the enticing of her husband, and that his wrongful act or acts of the defendant was the cause of the interference complained of; and, if the jury believes that the cause of interference complained of was a voluntary bestowal of the plaintiff's husband's affections shown the defendant, who did nothing wrongful to gain such affections, then it will be the duty of the jury to find a verdict for the defendant as to her action for allienation of affections.'

Appellant first contends that this instruction gave the jury a roving commission to find what acts of respondent were 'wrongful' and what acts of appellant's husband would constitute 'a voluntary bestowal' of his affections on respondent without hypothesizing the acts or facts from which the jury might legally make its findings.

We must assume that the jury was made up of men of average intelligence, and we cannot conceive how any jury could be mislead because the word, 'wrongful,' was not defined, or would fail to understand the words, 'a voluntary bestowal.' 'And, we may add, that if either of the parties deems a hypothesized fact or situation not to have been clearly or sufficiently hypothesized in any instruction, he should offer a clarifying or amplifying instruction.' Hooper v. Conrad, Mo.Sup., 260 S.W.2d 496, loc. cit. 501. In that case we overruled in part our case of Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541.

Appellant contends that the phrase, 'and, if the jury believes that the cause of interference complained of was a voluntary bestowal of the plaintiff's husband's affections shown the defendant,' made this instruction erroneous because 'he could well have done voluntarily what the evidence showed he did and Respondent still be liable, if her actions were such as would reasonably and probably cause a transfer of his affections from Appellant to Respondent, regardless of her intention and regardless of her volition.'

The case of Farrow v. Roderique, Mo.App., 224 S.W.2d 630, loc. cit. 633, was an alienation of affections action. In deciding the case, the Springfield Court of Appeals said, 'This instruction should have required the jury to find that there was some action on the part of defendant with the intent to alienate the wife's affections or of such a nature that alienation of her affections would be the natural result.'

The case of Miller v. Pearce, 86 Vt. 322, 85 A. 620, held that to make a case for alienation of affections, it is necessary to show that there was 'enticing, inducing and persuading' by the defendant.

'It is essential that defendant should directly and intentionally interfere with the marital relation between the spouses, to the extent of causing a loss of consortium, as discussed infra Sec. 665. It is not sufficient merely that one spouse has affection for or has become infatuated with defendant, or that friendly relations exist between the spouse and defendant, although distasteful to the other spouse and contrary to the edicts of society.' 42 C.J.S., Husband and Wife, page 318, Sec. 664.

'As a general rule a defendant to whom a spouse voluntarily, without wrongful inducement, gives his or her affections is not liable; and the mere maintenance of improper relations with one spouse does not give rise to a cause of action in the other unless the paramour is also guilty of active interference or some wrongful inducement. However, it has been held that defendant may be liable although he or she was not the original aggressor, that is, did not take the initiative in bringing about the situation which, through his or her wrongful acts, resulted in the alienation. Moreover, it is no defense that the spouse willingly eloped with defendan...