Smith v. Rice

• Decision Date: 24 November 1916
• Docket Number: No. 30852.,30852.
• Citation: 160 N.W. 6,178 Iowa 673
• Parties: SMITH v. RICE.
• Court: Iowa Supreme Court

178 Iowa 673

160 N.W. 6

SMITH

v.RICE.

No. 30852.

Supreme Court of Iowa.

Nov. 24, 1916.

Appeal from District Court, Cherokee County; W. D. Boies, Judge.

Action at law to recover damages for alienation of the affections of the plaintiff's wife. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.Robert Healy, of Ft. Dodge, and Claude M. Smith, of Cherokee, for appellant.

Herrick & Herrick, of Cherokee, and Faville & Whitney, of Storm Lake, for appellee.

WEAVER, J.

Plaintiff and his wife were married in 1889 and lived together about 25 years. During that period they made their home in several different states and moved from one home to another many different times. Plaintiff was on occasion a clerk in a store, a rural mail carrier, and at times otherwise employed. Defendant, who is a cousin of the wife, is a widower with a family of his own. He occasionally visited the Smiths. In the year 1914 plaintiff and wife were living near Cherokee, and, plaintiff being sick, defendant went there for the professed purpose of helping care for the plaintiff and looking after the farm work. Later the Smiths removed to Cherokee, taking up their home with defendant, where the wife began keeping boarders, in which business she was still engaged at the time of the trial. This, defendant says, was made necessary by the fact that plaintiff and wife were in reduced circumstances and had no home of their own.

It is the claim of plaintiff that, taking advantage of the opportunity thus afforded him, defendant supplanted him in the affections of his wife and alienated her from him. The defendant denies the wrongful conduct charged by plaintiff, and alleges, in substance, that during all of plaintiff's married life he neglected his wife, was guilty of adultery, and other scandalous offenses against her, was a gambler and spendthrift, and thereby caused her to withdraw her affections from him, and compelled her to refuse longer to live with him. Upon these issues there was a jury trial, resulting in a verdict and judgment for plaintiff in the sum of $6,500.

Several grounds are assigned for a reversal, but we shall confine our attention to such only as seem to be determinative of the appeal.

I. The appellant complains of the ruling of the trial court refusing to allow certain witnesses offered by him to testify to statements made by plaintiff's wife concerning her feelings toward her husband. The time to which the witness' attention was directed was during that period of the married life of the pair before it is claimed that defendant exercised any influence over the woman. To better understand the force and effect of the exception thus taken it should be said that the wife as a witness on the trial testified that after they were married and living in South Dakota plaintiff confessed to her he was afflicted with venereal disease, and told her of his association with squaws; and she swears that on one occasion she detected him in the act of adultery with another woman. She further testified that he was lazy and inefficient; that practically all the money they ever accumulated was by her own labor; and that he was addicted to gambling. There was also other evidence that plaintiff neglected his wife, leaving her alone at night when she was pregnant and in delicate health, and that he was unkind and indifferent to her at the birth of her child. She further testified that her love and affection for her husband had ceased “many years since.” To quote her own language, “It has been a constant wear-out until it is entirely gone.” Referring to a time when they lived in Dakota, one witness said she had visited Mrs. Smith at her home, remaining there with the family some two weeks. She had also on later occasions visited with the wife at her home in Manchester, and later in Cherokee. On these visits she had conversations with Mrs. Smith concerning her husband and their domestic relations. Being asked to repeat the wife's words or statements on this subject, the plaintiff's objections were sustained and the evidence excluded on the ground that the matter called for was “incompetent, irrelevant, immaterial, and hearsay, and conversation had not been in the presence of her husband.” Plaintiff's motion to strike out the preliminary statements made by the witness was also sustained. Another witness testifying by deposition for defendant said she had lived in the same house with Smith and wife in Dakota when Mrs. Smith was pregnant and in delicate health and when her child was born, that Mrs. Smith came frequently into the witness' rooms crying and complaining of the neglect of her husband. Witness also said as of her own knowledge that Smith “neglected her and left her alone nights,” and further said, “I was with her when the baby was born, and I know he was unkind and indifferent to her.” This answer was also stricken out as being a statement of conclusions, and not of fact. On the other hand, plaintiff offered and was permitted to introduce testimony of witnesses who said they had been in the Smith home before defendant went there and noticed the relations appearing to exist between husband and wife. One of them says, “I thought they got along nicely; I noticed no lack of affection between them. Before that time they were happy and affectionate according to my observation. I noticed a lack of affection after Rice went there.” Another witness for plaintiff says, “I visited them frequently at Manchester. They always seemed to be happy.” Another, having said he visited the husband and wife at Manchester, was asked whether he then had any conversation with the wife “with regard to her feelings toward her husband,” and over defendant's objection was allowed to say, “She often made the remark she had the best man of the four girls,” and that he saw nothing that indicated any lack of affection between them. Still another was allowed to say their conduct toward each other was “all right so far as I could see”; “there was no discord in the Smith home while they were living in Manchester”; “Smith never had the reputation of being a gambler”; “he was not neglectful of his wife and out late nights.” Plaintiff himself testified: “Our affections commenced to cool about 1913. Never had any trouble with my wife and family until she turned me out of the home about six months ago.”

[1][2][3][4] In view of the issues joined and the testimony admitted on behalf of plaintiff, we think the exclusion of the testimony offered by the defendant concerning the domestic relations of plaintiff and wife and of her statements concerning the same made before the alleged alienation was erroneous. That evidence of this nature is competent is well settled, although here and there may be found an inconsistent precedent. To entitle plaintiff to recover he is required to establish by a preponderance of evidence not only that he has lost the affection of his wife, but that such loss was caused by the wrongful conduct and inducement of the defendant. If found entitled to recover, then the jury is called upon to consider the question of damages, and in order that the amount may be reasonably and properly proportioned to the wrong or injury it is of prime importance that there be evidence of the relations existing between the husband and wife prior to the alleged interference between them by the defendant. True, plaintiff's neglect, if any, of his wife, his ill treatment of her, or even his adultery, would not of itself justify defendant in enticing the wife away from him, yet if by such conduct plaintiff had already completely lost his wife's love and affection, then no recovery could be had for any sum. If, however, it should be found that the wife had not entirely withdrawn her love and affection from her husband, and defendant poisoned her mind against him and enticed her to abandon him, then his right of recovery would be complete, but evidence of any lack of harmony between them or of any conduct on the husband's part having a natural tendency to weaken or destroy the bond of conjugal affection would still have to be considered, as we have just suggested, upon the question of damages. To this effect see the following authorities:

“Any unhappy relations existing between the plaintiff and wife, not caused by the conduct of the defendant, may affect the question of damages, and were properly submitted to the jury; but they are in no sense a justification or palliation of the defendant's conduct. They are not allowed to affect the damages because the acts of the defendant are less reprehensible, but because the condition of the husband is such, that the injury, which such acts occasion, is less than otherwise it might have been.” Hadley v. Heywood, 121 Mass. 238.

“The fact * * * that the plaintiff and his wife lived unhappily together before the defendant appeared, and even were much estranged, would not constitute a bar to the plaintiff's action, but would go, * * * in mitigation of damages.” Prettyman v. Williamson, 1 Pennewill (Del.) 224, 39 Atl. 731.

“Circumstances which show that plaintiff possessed no comforts of a domestic character, are proper to be given in evidence, in mitigation of damages. If the plaintiff and his wife lived unhappily before the improper advances of the defendant, such evidence is pertinent. The defendant cannot be chargeable with destroying * * * plaintiff's domestic comfort, when he had never enjoyed such comfort. If the plaintiff was in the habit of improper intimacy with other women, his sense of moral propriety * * * could not be much offended by the loss of virtue in his wife. The guilt of the defendant is not therefore diminished; but the plaintiff has sustained less damage. The...