Stanton v. Cox

• Decision Date: 25 January 1932
• Docket Number: 29458
• Citation: 162 Miss. 438,139 So. 458
• Court: Mississippi Supreme Court
• Parties: STANTON v. COX

139 So. 458

162 Miss. 438

STANTON v. COX

No. 29458

Supreme Court of Mississippi

January 25, 1932

Division A

1. HUSBAND AND WIFE.

Wife suing for alienation of husband's affections has burden of proving direct interference on defendant's part causing alienation.

2. HUSBAND AND WIFE.

Evidence that defendant willfully and actively interfered with wife's rights and alienated husband's affections held sufficient to make case for jury.

3. APPEAL AND ERROR.

Supreme court could not consider assignment of error, respecting introduction of picture, where there was no objection thereto.

4. APPEAL AND ERROR.

In action for alienation of affections, admitting in evidence plaintiff's husband's diary held harmless, where it merely established visits to defendant which defendant admitted.

5. EVIDENCE. In action for alienation of affections, typewritten copies of plaintiff's husband's letters to defendant held properly admitted, where husband had destroyed original letters.

The wife had abstracted the original letters from husband's desk and, after having copies made, had returned the originals to husband in effecting a reconciliation, and the husband had burned them in wife's presence. Thus, the wife did not voluntarily destroy or withhold the original letters, and the copies were admissible.

6. HUSBAND AND WIFE.

Evidence regarding financial condition of defendant held inadmissible in defense or in mitigation of damages in action for alienation of affections.

7. APPEAL AND ERROR.

Where peremptory instruction granted plaintiff on first trial was improperly given, judgment for plaintiff on verdict in first action would not be reinstated on appeal from judgment in second action.

HON. W A. WHITE, Judge.

APPEAL from Circuit court of Harrison county HON. W. A. WHITE Judge.

Action by Rita Cox against Dorothy Stanton. From a judgment for plaintiff, defendant appeals, and plaintiff cross-appeals. Affirmed on direct and cross-appeals.

Affirmed on direct and cross-appeals.

Geo. H. Stanton, of Great Falls, Mont., and J. L. Taylor, of Gulfport, for appellant.

The general rule is that there is no ground for an action where a spouse voluntarily gives his or her affections to another, the latter doing nothing wrongful to win such affections. To support an action for alienating a husband's or wife's affection it must be established that the defendant is the enticer. If the husband alienated his own affections from his wife or if alienated by the plaintiff's own conduct, or both without the interference of defendant--then the plaintiff, howsoever unfortunate or wronged cannot recover damages from the defendant.

Scott v. O'Brien, 110 S.W. 260; 16 L. R. A. (N. S.) 742; 15 Am. & Eng. Enc. of Law, p. 865; 21 Cyc. 1621; Metcalf v. Tiffany, 64 N.W. 479.

To entitle the plaintiff to recover in an action for alienating affections the burden of proof is upon the plaintiff and the plaintiff must show that there was a direct interference upon the part of the defendant; that not only was there infatuation of the husband or wife for the defendant but that the defendant by wrongful act was the cause of it.

3 Elliott on Evidence, sec. 1643; Waldron v. Waldron, 45 F. 315.

It might well have been that the plaintiff's own misconduct was the actual and procuring cause of the loss of her husband's affections, and that in consequence the appellant (defendant) could not have been the cause of such loss because she could not destroy what had already been destroyed.

Anarina v. Boland, 111 A. 84; Buchanan v. Foster, 48 N.Y.S. 732; Potter v. Howser (Neb.), 177 N.W. 169; Bruce v. Calvin (Iowa), 166 N.W. 787; Cash v. Childers (Ky.), 195 S.W. 791; Hall v. Hall, 164 P. 390; Miller v. Pioerpont, 87 A. 785; Prettyman v. Williams, 39 A. 731; Cooper v. Cooper, 171 P. 5; Tasker v. Tasker, 26 N.E. 417; Linden v. McClintock, 187 S.W. 82; Moelleur v. Moelleur, 173 P. 419; Rath v. Rath, 89 N.W. 612; Powell v. Benthall, 48 S.E. 598; Pugsley v. Smyth, 194 P. 686; Curtis v. Miller, 112 A. 747; McAlpin v. Baird, 166 N.W. 639; Lewis v. Roby, 65 Aft, 524.

The rule of law which requires the best evidence within the power or control of the party to be produced should not be relaxed and the court should be satisfied that the better evidence has not been wilfully destroyed nor voluntarily withheld.

2 Jones Commentaries on Evidence (2 Ed.), page 1502, sec. 819.

The proponent's intentional destruction of the document bars him from evidencing its contents in any other way.

2 Wigmore on Evidence, section 1198; Broadwell v. Stiles, 8 N. J. L. 58.

The object of the rule of law requires the production of the best evidence of which the facts sought to be established are susceptible is the prevention of fraud; for if a party is in the possession of this evidence and withholds it and seeks to substitute evidence in its place, the presumption naturally arises that the better evidence is withheld for fraudulent purposes which its production would expose and defeat.

Bagley v. McMickle, 9 Cal. 430-446; Wyckoff v. Wyckoff, 16 N.J.Eq. 401.

Letters constituting part of the general correspondence between the persons as to a particular matter are inadmissible unless the entire correspondence is offered.

5 Nichols Applied Evidence, sec. 29; James v. James, 170 P. 285.

In order for plaintiff to recover it was necessary to show that it was the efforts of the defendant which were the controlling cause, that destroyed the affection which plaintiff's husband had for her and caused their separation, and that the acts of the defendant were done knowingly and intentionally for the purpose of alienating the husband's affections.

Powers v. Sumbler, 110 P. 97; Paird v. Carle, 147 N.W. 834; Pugsley v. Smythe, 194 P. 686; Milewski v. Kurtz, 71. A. 107; Liligram v. Burns, 160 N.W. 203.

An intent or motive, not directed against the plaintiff is insufficient to sustain an action for alienation of affections.

Nieberg v. Cohen, 92 A. 214; Cripe v. Cripe, 148 P. 520; Geromini v. Brunelle, 102 N.E. 67; Hodge v. Brooks, 240 S.W. 2; Stilwell v. Stilwell, 172 N.W. 177; Barton v. Barton, 94 S.W. 574; Powers v. Sembler, 110 P. 97; Lilligram v. Burns, 160 N.W. 203.

The circuit judge was correct in granting a new trial for two reason; First, because it was apparent that the verdict arose from passion and prejudice of the jury; second, because the peremptory instruction to find for plaintiff was a usurpation of jury functions in that there was a conflict in the evidence that was for the jury alone.

Mize, Mize & Thompson, of Gulfport, for appellee.

No outsider has the right to interfere with the marital relations between a husband and wife, even though the husband and wife are separated at the time, upon the very sound reason that there is always a possibility of reconciliation as long as the husband and wife are left alone.

Dunaway v. Brister, 115 So. 36.

Appellant was the procuring cause of the loss of the affection of Cox for his wife and she did it clandestinely.

30 Corpus Juris, p. 1122, secs. 974, 979, 980, 981, 982, 983, 985, 988, 990; Warren v. Graham, 174 Iowa 162; Rott v. Goehring, 157 N.W. 294; L. R. A. 1916E, p. 1086; Prettyman v. Winson, 39 A. 731; Fratini v. Caslini, 66 Vt. 273; Hollinghausen v. Ade, 233 S.W. 39; Cramer v. Cramer, 180 P. 915.

While a stranger may without liability harbor a wife who has left her husband, he may not persuade her to leave him or not return to him, for although she may have just grounds for a separation, yet she may choose to return, and a stranger has no right to intermeddle and if he does so voluntarily he must answer for the consequences.

13 R. C. L. 1464, sec. 513; Hart v. Knapp, 76 Conn. 135; Miller v. Pierce, 43 L. R. A. 332.

There was no objection to the introduction of the kodak picture as the record shows it was introduced under Mrs. Stanton's testimony and as there was no objection, the picture was competent under her own admissions.

The diary was properly admitted as Mrs. Stanton admitted on cross-examination practically everything that was shown by the diary.

Fuller v. Robinson, Ann. Cas. 1912A, p. 938; 13 R. C. L. 1475; Secs. 526-527; 30 Corpus Juris, p. 1139, sec. 1101.

The object of that law which requires production of the best evidence of which the facts sought to be established are susceptible is the prevention of fraud. To refuse to admit copies the destruction must be intentional and for fraudulent purposes and with the intention to produce a wrong to the opposite party. Secondary evidence of its contents may be given if the circumstances accompanying the act are consistent with an honest purpose.

Jones Commentaries on Evidence (2 Ed.), p. 1511, see. 826; Riggs v. Tayloe, 9 Wheat. U. S. 483, 6 Law Ed. 140.

The financial condition of the defendant is immaterial and it is not competent to show her financial condition affecting compensatory damages because plaintiff is entitled to a judgment for compensatory damages for whatever amount she has suffered by the wrongs of a defendant regardless of whether she is a pauper or a millionaire.

13 R. C. L. 1479, sec. 528; Bailey v. Bailey, 63 N.W. 341; Phillips v. Thomas, Ann. Cas. 1914B, p. 800.

The verdict and judgment rendered at the first trial of this cause should be reinstated on cross appeal.

Evans v. Wenger, 103 So. 481; Ennis v. Y. & M. V. Ry., 118 Miss. 509.

Argued orally by Geo. H. Stanton, and J. L. Taylor, for appellant, and by S. C. Mize, for appellee.

OPINION

McGowen, J.

Mrs Rita Cox exhibited her declaration against Mrs. Dorothy Stanton, seeking to recover damages of the latter for the wrongful, malicious, and oppressive alienation of her (Mrs. Rita Cox) husband's affections, charging that Mrs. Stanton had thus destroyed...