Stocker v. Stocker
| Decision Date | 31 July 1924 |
| Docket Number | 23549 |
| Citation | 199 N.W. 849,112 Neb. 565 |
| Parties | GUSSIE E. STOCKER, APPELLEE, v. HARRIET STOCKER, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: FREDERICK E SHEPHERD, JUDGE. Affirmed.
AFFIRMED.
C. C Flansburg, for appellant.
Paul Jessen, G. E. Hager, and Kelligar & Ferneau, contra.
Heard before MORISSEY, C. J., ROSE, DAY and GOOD, JJ., BLACKLEDGE and REDICK, District Judges.
In an action for alienating her husband's affections, plaintiff, Gussie E. Stocker, recovered a judgment against her mother-in-law, Harriet Stocker, for $ 10,000. Defendant appeals.
Plaintiff and Reggie Stocker were married at Auburn, Nebraska, in June, 1916, and immediately went to the home of Reggie's parents in Lincoln, Nebraska, and made that their home until the young people separated in July, 1921. At that time plaintiff left the home of her husband and parents-in-law, and went to the home of her parents in Auburn, where she has since resided, apart from her husband. In October, 1921, Reggie Stocker sued his wife for a divorce. A trial of that case resulted in a decree giving his wife an allowance for separate maintenance and the custody of their little daughter, which decree was afterwards affirmed by this court, Stocker v. Stocker, ante, p. 201. Defendant contends that the verdict is not supported by the evidence; that the proof shows that plaintiff did not lose the affections of her husband until after the separation in July, 1921, and that there is no evidence to show any act on the part of defendant, after that separation, which would cause the loss of affections complained of.
There is evidence tending to establish the following state of facts: Defendant was not pleased with her son's choice of a wife. Shortly after marriage she began to ill-treat the plaintiff; would not allow plaintiff's parents to visit her in the home; would not allow plaintiff to partake of delicacies and other articles of food that would be placed upon the family table; made it so unpleasant that plaintiff's friends would not call at the home; required plaintiff to retire to her room upstairs early after the evening meal; and would not allow her to have a light in her room except long enough to disrobe in retiring; frequently said the plaintiff was untruthful, dirty and dishonest; frequently called her a liar and a thief and other words not fit for the printed page, and on more than one occasion physically assaulted the plaintiff and falsely accused plaintiff of assaulting and wounding defendant. These things were done in the presence of plaintiff's husband and some of them in the presence of neighbors. Defendant told plaintiff she was not wanted in the home and to leave and not return, and subjected her to such indignities that no woman of spirit and self-respect could or would endure the treatment. As time went on, the conditions became worse and less endurable. On the morning that plaintiff left she was told by defendant's husband not to return; that Reggie would pack and send her things to her. When married, plaintiff weighed 115 pounds and at the time of the separation weighed but 94 pounds. Because of the constant harassment to which she was subjected, the plaintiff became nervous and ill, her peace of mind was destroyed and her health was well-nigh ruined. She frequently besought and begged her husband to provide a home apart from that of his parents, no matter how humble. Her husband at all times refused to provide a separate home for his child and her. At first he would refuse to partake of such articles of food as were denied his wife; ere long he changed and ate food his wife was denied, saying that there was no use in denying himself simply because she was denied. On one occasion, at night, Reggie came from his mother's room to his wife and told her they would never have a separate home; that if he should leave the parental roof his mother would commit suicide and bring shame and disgrace he could not bear, and that she would disinherit him if he were to leave.
After the separation in July plaintiff was at the home of her parents in Auburn, but 90 miles distant from Lincoln. Her husband did not visit her and his little daughter for two months, and the occasion of that visit was the transaction of business for his parents at Auburn, and then he called upon his wife. It is true that in the interim several letters passed between plaintiff and her husband, but it is significant that he kept carbon copies of all the letters he wrote at that time, as well as of previous letters. He again visited his wife in October and, when she was unwilling to return to the home of his parents and submit to the conditions above described, divorce was talked of, and he shortly afterwards began his action for divorce.
We think the evidence, fully and fairly considered, shows that Stocker's affection for his wife waned with the lapse of time, and, while he still professed an affection for her after the separation, that the jury were justified in the belief that he cared little for his wife, or he would not have insisted that she return to the home where she had been so cruelly mistreated. Had he then entertained for her the love, affection and consideration that a husband should entertain for his wife, he would have shielded her from the indignities to which she was subjected at his parents' home, and would have provided a home elsewhere. We find nothing in the record that would justify an inference that plaintiff's loss of her husband's affection was caused by anything other than the conduct of defendant. We are satisfied that the evidence amply sustains the verdict.
During the progress of the trial plaintiff was permitted, over objection, to testify to communications between her and her husband where such communications were not in the presence of defendant. It is urged that the error was committed in the admission of such evidence, on the ground that it was hearsay and incompetent, and because under the statute a wife is incompetent as a witness to testify as to communications between her and her spouse that were made during the existence of the marriage relation.
While evidence of what the husband said out of the presence of the defendant would ordinarily be hearsay and incompetent to prove such wrongful conduct of defendant as would tend to cause the husband to lose his affection for his wife, such evidence may be properly received to show the state of the husband's feelings toward his wife, and in this case the court, by proper instruction, informed the jury that such evidence was received only for that purpose. That such evidence is admissible to prove the state of the husband's feeling has been held by this court and is sustained, we think, by the weight of authority. Hope v. Twarling, 111 Neb. 793, 198 N.W. 161; Melcher v. Melcher, 102 Neb. 790, 169 N.W. 720; White v. White, 140 Wis. 538, 122 N.W. 1051; Hardwick v. Hardwick, 130 Iowa 230, 106 N.W. 639.
It is strenuously urged that the provisions of sections 8835, 8838 Comp. St. 1922, make the wife incompetent to testify concerning any communication made to her by her husband during the marriage, and that error was committed in receiving such evidence. ...
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