Spiry v. Spiry
| Citation | 199 N.W. 778,47 S.D. 500 |
| Decision Date | 27 June 1924 |
| Docket Number | 5525. |
| Parties | SPIRY v. SPIRY et ux. |
| Court | Supreme Court of South Dakota |
Appeal from Circuit Court, Walworth County; J. H. Bottum, Judge.
Action by Bertha Spiry against Fred Spiry and wife, for damages for alienating affections of plaintiff's husband. From a judgment for plaintiff and order denying a new trial defendants appeal. Reversed.
Supreme Court Judges POLLEY, GATES, and SHERWOOD deeming themselves disqualified from taking part in the decision of this action Circuit Judges N. D. BURCH, W. N. SKINNER, and FRANK B. SMITH were selected to act in place of the aforesaid Supreme Court Judges according to chapter 343, Session Laws of 1919.
W. M Potts, of Mobridge, and McNulty & Campbell, of Aberdeen, for appellants.
Morrison & Skaug, of Mobridge, and H. O. Hepperle, of Aberdeen, for respondent.
The plaintiff is Bertha Spiry, who before her marriage was Bertha Schlep, and her parents, are Germans, and her husband and his parents are Germans, all living on farms in the same vicinity in Walworth county.
Along in the last part of her eighteenth year plaintiff became pregnant as a result of sexual relations with some one. Samuel Spiry, the son of the defendants, and who afterwards became the husband of the plaintiff, was then about 19 years of age, and she and this young man had been acquainted something like a year at the time she became pregnant. Some length of time after she became pregnant she accused Samuel Spiry of being the father of the child, and charged him with and had him arrested for, statutory rape, very probably at the instigation of her parents and in March, 1920, he was tried and convicted of the crime of rape in Walworth county and sentenced to 6 years in the penitentiary. The plaintiff testified against him upon such trial. Immediately after the sentence was pronounced all parties got together and the matter was fixed up, whereby Samuel Spiry, in order to avoid execution of sentence, went before the presiding judge and stated that the child was his and agreed to marry the plaintiff, and on the 25th day of March, 1920, he and the plaintiff were married and the defendant herein, the father of Samuel Spiry, paid the father of Bertha Schlep $350 representing attorneys' fees which Mr. Schlep had paid for counsel to assist in the prosecution of Samuel Spiry.
After the young people were married, they went to the home of Bertha's father, and Sam remained there about a week, when he went to work for his father until in May of that year, visiting his wife on Sundays. There was some friction between Sam and Bertha's parents in regard to Sam not staying with her all of the time, and in May, 1920, Sam left the country, apparently without the knowledge of any one, and went to Oregon, and remained away until in March, 1921, when he returned, going directly to the home of his wife.
During the absence of Sam in Oregon, and in the latter part of 1920, the plaintiff in this case commenced an action against these same defendants for damages for alienating the affections of her husband, and after the return of Sam, and about March 25th, the case was settled by the defendants deeding to Bertha and Samuel jointly a quarter section of land near Java, S. D., and the payment of $500 to Mr. Skaug, attorney for plaintiff. After this settlement, Bertha and Sam began living together again. Bertha, however, refused to live with Sam after his return until the quarter section of land was deeded to them by the defendants. As a part of this settlement Sam again stated to the judge that he was the father of the child, but at all other times and places he has persistently denied that he was its father. In April they went to live at Java, first in a house known as the Flight house and then in a house owned by her grandfather. For about 3 months Sam worked at an oil station on commission, receiving only about $15 per month, but received some assistance from Sam's parents in the way of things to eat. After quitting the oil station some time in July, Sam worked for his father some and some with thrashing-machines, and also at a job of dragging roads which his father procured for him. During this summer and early fall the relations of the defendants and the plaintiff herein were apparently friendly. Plaintiff says, "they treated me kindly; they asked me into their home; never talked to me about the trial; never talked about this child that Sam said was not his."
As the winter of 1921 and 1922 approached Sam and his wife began to consider and to talk as to what they should do for the winter. She was then pregnant, 5 or 6 months along. Sam wanted to go on the farm, claiming that he could not make a living the way they were. They were having a hard time of it financially, and Sam could not find any work to do. Bertha, however, refused to attempt to live on the farm, and later, on December 26th, Bertha went or was taken to her father's home. Whether she went willingly or unwillingly is a question. Sam then went to work at his father's during the winter, his father having received an injury which somewhat disabled him. It was during this time on November 22, 1921, that the plaintiff first finds any cause to complain of the actions and conduct of the defendants since the settlement of their difficulties on March 25, 1921. Just what happened at this time is in dispute. The plaintiff testified through an interpreter, in substance, as follows:
"Sam was through thrashing, and was home on November 20th. In the evening he went out, and was not home on the 21st. My husband came home together with his father and mother while we were living at my grandfather's house in Java on the 22d of November, 1921, on Tuesday. On November 22, 1921, Sam and his father and mother came to our house, and they all came in the house. The conversation was that the parents said that they would have Sam out to the farm, but I said that they should leave him in as I was sick. When Sam came in he said, 'Are you sick,' and I said, 'Yes, I am sick,' and then Sam said that his parents were there, and they called to take him out with them again. His father said, 'You can stay here all right if we give you $10,000 and the land on top of it,' and his father said, 'This is not Sam's child,' and I said, 'They shall prove whose child this is, and they shall bring the proof here.' And the mother said, 'The whore comes not on my place.' Sam's father said, 'The land he would get rid of in some way.' I was at that time pregnant. At that time Fred Spiry or his wife said to me that my baby that was going to be born that they were not Sam's children, they were picked-up children. Sam was there present at the time this conversation took place. Sam's father said that, when they went out, where there is an ass the eagles will also be. They asked Sam to go back, and Sam said that he had to be where his parents were; in other words he said he had to do what his parents said. Sam went out of the house with his father and mother. Sam stayed out there until the following Saturday night. I was alone from the 22d until the following Sunday. I was very sick at the time. I did the work about the place, but others carried in coal and water. I went down town and got provisions for myself and the baby and had it charged to Sam, and when Sam came in he scolded that I charged those things to him. My oldest baby was a year and 11 months at that time. The baby that I was then carrying was born on January 19, 1922. When Sam came home the next Sunday he said nothing. He scolded where I had charged those things. He was then gone until the 26th day of December, when he called me to my folks. His folks brought him to my home at different times before the 26th of December in their automobile. Fred Spiry came to get him from my home on different occasions before the 26th of December. He would usually come to get him early in the morning. He got him often. Sam took me to my parents' home on the 26th of December. A couple of days before that I had a talk with Sam. He gave me $25 and said, 'Here is $25 for the picked-up kid.' That is all he said and hauled me away. Before we had this conversation Sam said, He took me to my parents' home on the 26th day of December, 1921. He left immediately with my married brother and his wife. I next saw Sam on February 15, 1922. In March following I received a letter. Sam was not there when the baby was born. The baby was born at my parents' home on January 19, 1922. Sam came on February 15, 1922. That was the first time he had been to see me since December 26th previous. He stayed three or four hours on February 15th."
Some other evidence of plaintiff indicates that Sam's parents wanted him simply to go and help them on the farm as he had done at other times. At that time Sam was not doing anything. On cross-examination plaintiff testified that, when Sam came home on Saturday after November 22d, She also testified on cross-examination as follows:
This is corroborated by Sam's testimony.
After December 26th, the winter became very severe with deep snow. Sam was doing chores for his father. Having heard that a baby had been born, Sam and his brother, on February 15, 1922 with a team and cutter belonging to their father went...
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