Sickler v. Mannix

• Decision Date: 17 February 1903
• Citation: 93 N.W. 1018,68 Neb. 21
• Parties: SICKLER v. MANNIX.
• Court: Nebraska Supreme Court

68 Neb. 21

93 N.W. 1018

SICKLER

v.MANNIX.

Supreme Court of Nebraska.

Feb. 17, 1903.

Syllabus by the Court.

1. Petition for alienating the affections of a husband examined, and held sufficient.

2. A judgment record cannot be used in favor of a stranger to establish facts recited in the judgment, unless such finding is based on an admission made by the party against whom it is sought to be used.

Commissioners' opinion. Department No. 3. Error to district court, Buffalo county; Sullivan, Judge.

Action by Ellen Mannix against Catherine J. Sickler. Judgment for plaintiff, and defendant brings error. Affirmed.William Gaslin, A. G. Wolfenbarger, and John Everson, for plaintiff in error.

H. M. Sinclair, for defendant in error.

DUFFIE, C.

This action was brought by Ellen Mannix to recover from Mrs. Sickler damages sustained for alienating the affections of her husband, W. W. Mannix. A trial resulted in a verdict for the plaintiff below for $10,000. The court ordered a remittitur of $7,000, to which the plaintiff submitted, and judgment was entered in her favor for $3,000, from which the defendant below has taken error.

Twenty separate assignments of error are set out in the petition filed in this court, but, as the brief filed in support thereof fails to discuss many of these assignments, we are required to notice only those that are supported therein by argument and upon the oral presentation of the case when it was submitted.

It is insisted that the petition does not state a cause of action against the defendant, in that it fails to charge that the plaintiff in error was actuated by malicious motives in alienating the affections of the plaintiff's husband. Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397, is one of the authorities relied on by the defendant in error in support of this contention. In that case the defendant requested a charge that, “to entitle the plaintiff to recover, the defendant must have maliciously caused the separation of the husband and wife.” Relating to this, the court said: “This charge ought to have been given. The term ‘malice’ as applied to torts does not necessarily mean that which must proceed from a spiteful, malignant, or revengeful disposition, but a conduct injurious to another, though proceeding from an ill-regulated mind, not sufficiently cautious before it occasions an injury to another. Weckerly v. Geyer, 11 Serg. & R. 39. If the conduct of the defendant was unjustifiable and actually caused the injury complained of by the plaintiff, which was a question for the jury, malice in law would be implied from such conduct, and the court should have so charged.” This, we think, is the trend of all the decisions on the question, and a petition which charged that the defendant “wrongfully, wickedly, and unlawfully sought and courted the society of plaintiff's husband,” as does the one under consideration, sufficiently charges that it was maliciously done.

It is not controverted that after the commencement of this action, and before the trial was had, W. W. Mannix, the husband, obtained a divorce from Ellen Mannix, the defendant in error. The decree was entered in the circuit court of Fall River county, S. D., after a trial at which Mrs. Mannix appeared and litigated her husband's right to a divorce. The court found that Mrs. Mannix was guilty of extreme cruelty to her husband, and judgment...