Surbeck v. Surbeck

• Decision Date: 11 November 1918
• Docket Number: No. 12779.,12779.
• Citation: 208 S.W. 645
• Parties: SURBECK v. SURBECK et al.
• Court: Missouri Court of Appeals

208 S.W. 645

SURBECK v. SURBECK et al.

No. 12779.

Kansas City Court of Appeals, Missouri.

November 11, 1918.

Appeal from Circuit Court, Macon County; Vernon L. Drain, Judge.

"Not to be officially published."

Suit by Ruth Surbeck against Henry C. Surbeck and another. Judgment for plaintiff, and defendants appeal. Judgment affirmed.

Dan R. Hughes and Guthrie & Franklin, all of Macon, for appellants.

Barker & Jones, of La Plata, and Campbell & Ellison, of Kirksville, for respondent.

TRIMBLE, J.

Ruth Surbeck sued the mother and brother of her husband, John Surbeck, for alienating his affections. She recovered judgment for $3,000 actual and $3,000 punitive damages. Defendants appealed.

They insist that the evidence did not justify the submission of the case to the jury. This calls for a statement of the facts in detail, giving as clear a picture as possible of the situation and surrounding circumstances. Of course, under the well-established rule governing the determination of a demurrer to the evidence, we must accept as true everything (not inherently unbelievable or impossible) tending to support the verdict, and give plaintiff the benefit of every favorable inference which the jury could rightfully draw from the testimony.

And if there is any substantial evidence, whether direct or inferential, tending to establish the ultimate facts constituting the various necessary elements of plaintiff's cause of action, then we cannot overturn the jury's verdict upon the ground that it is without evidentiary support.

John Surbeck and Ruth Roan were married June 18, 1915. At that time he was 24 and she 16. She was living at her home in La Plata, though having been partly reared on the farm. He was living on a farm about 12 miles west of that town. His father died in 1913, leaving a widow, Eva D. Surbeck, defendant herein, with four sons and three daughters. At the time of his death he own' ed the farm above mentioned, consisting of 1,643 acres, also a house in La Plata, and a large amount of personal property, consisting of bank stock, farming implements, and farm stock. The farm personalty amounted to about $12,000. By his will he left all to his widow. She and two of the daughters lived in La Plata. The other daughter, having married, was residing in Chicago. The three sons lived on the farm. The eldest was the defendant Henry C. Surbeck, commonly called Clay Surbeck. John was the youngest of the family, and had been born and reared on the farm. After the death of the father the three sons continued to reside there and work it, Clay being the manager. The business was conducted under the firm name of "Surbeck Bros." According to defendants' evidence (which is all there was on this subject), the firm was composed of the mother, Eva D. Surbeck, who retained three-sixths interest in the farm personalty, and sold a one-sixth to each of the three sons for $2,000, two of the boys paying cash for their share, and John giving his mother a note for his part. At the time of the plaintiff's marriage to John all three brothers were single, and the firm employed a housekeeper to look after the household. As stated, Clay was the manager and head of the business, and, according to his own evidence, John looked to him for orders a great deal of the time.

There is no direct or affirmative evidence that defendants opposed John's marriage nor is there any that they favored it. However, according to defendants' evidence, shortly before the marriage, but after defendants knew it was impending, John dropped out of the firm by receiving back from his mother his $2-000 note. There was no outward or visible change in affairs. John continued to reside and work on the farm as before. No settlement seems to have been made with him for any share in the profits of the firm, the defendants' explanation of this being that there were no profits, and that John owed debts which his mother paid, amounting to about $900. If he ceased to be a member of the firm, as defendants claim, and thereafter "took the position about of a hired hand," to use Clay's language, there is no showing that any agreement or stipulation was entered into concerning the wages he was to receive. The defendants say they merely handed him money as he needed it, and admit that they kept no account of it.

At John's suggestion the couple went to Kirksville and were married. She had spoken to her parents about the marriage, but John had said nothing to them, though he promised plaintiff he would. They were not objecting, however. Her father was away from home at the time they had planned to get married, and the young people were not willing to wait until his return, and knowing that, if her true age was stated, the father's formal consent would have to be obtained, the young lady gave her age as 18. They returned to La Plata the following Sunday, she going to her father's home and he to the farm. The next Sunday a dinner or "infair" was given at the home of the bride's parents, at which the groom's mother and sister were present; but for some reason the groom did not come till that night, when he and his bride went to his mother's home in La Plata, and stayed several days, and then the groom again went back to the farm and the bride returned to her home.

In the meantime they had arranged between themselves to go on the Surbeck farm to live. When John left he was to telephone his wife when to come, though no definite time was set when he would do so. Thereafter he did telephone her to come. She went on the railroad to Elmer, the nearest station to the farm, but, on account of high water and a bridge being out between that point and the farm, she went on to another station called Ethel, and there hired a team to take her to the farm. Her husband met her at the gate. A room was assigned them in the house. Clay says that he gave up his room on the ground floor to them. The housekeeper stayed about three weeks after that time and left, not, however, because of the presence of young Mrs. Surbeck or anything that she did. This was in July, 1915, and for a month thereafter the young wife did the work and the cooking for eight people, including harvest hands. Her husband helped her, and she says she did not do the washing by herself. Finally Clay decided to have the washing done in town, and her parents sent a girl out from La Plata to help her with the work.

Plaintiff says that up to this time Clay Surbeck was in a good humor most of the time. The girl sent by the young wife's parents stayed only two weeks and then left. Then Clay employed a girl by the name of Huffman. She stayed about six weeks and left. This was about the last of September, 1915. About the 1st of October the defendant airs. Eva D. Surbeck, for the first time after the plaintiff's marriage, came to the farm and stayed two days. While there she quarreled with the young wife because she did not fix a door that was pulled apart, and because there was a window down about four inches and she could not get it up. This was in the husband's presence and lie did not say a word. The young wife was doing the housework at the time.

Later in the same month the young couple made a trip to Chicago, visiting the married sister there. They went by way of La Plata, where the young wife saw her mother-in-law, and told her they were going to Chicago and that her husband had told her she could get a new suit. The mother-in-law was mad about it, saying the clothes she lied were plenty good to wear to Chicago.

While they were away on this trip the mother-in-law went to the farm and stayed, looking after the household. Upon their return from Chicago to La Plata they Went to the defendant Mrs. Surbeck's home, as previously directed by her, and stayed several days, the said defendant acing sell at the farm. While at her home an electric light globe was broken in some way, and John called the electric light Iran to the house and had him fix it. The young couple then went out to the farm. After their return the defendant Mrs. Surbeck was not friendly to the plaintiff. She just barely spoke, and when plaintiff would say anything to her the latter would cut her off short. Clay, too, was unfriendly toward her and very gruff, so plaintiff says. He did not like anything she did, and frequently quarreled with her, sometimes because there was no water in the bucket, and at other times because she had not carried out and emptied the slop bucket setting on the porch, and at other times because of other things. Ills manner toward her was much the same in her husband's presence as out of it. John never interposed, nor did he oppose Clay in anything. Clay appeared not to want John to be with his wife. Finding him with her, he would order John out to do something, or quarrel with him about inconsequential matters, and make things so unpleasant that John would leave his wife's presence. Often, if John was in the room alone with his wife, and saw Clay coming, he would go out by another door so as to be away when Clay arrived. (The evidence shows that prior to the marriage, when the boys were without help, John did the " cooking, and when his wife did the housework he assisted her as much as lie could.) On other occasions, when Clay would come into the house and find John with his wife, he would sit with folded arms and stare them out of countenance, or stand by the stove and work his hands in a peculiar end unpleasant manner till John would get up and leave. ?he evidence is that John did whatever Clay directed him to do and did it precisely as he was ordered.

A few days after the couple's return to the farm from their Chicago trip, Mrs. Eva Surbeck, who had gone back to her home in La Plata, was presented with a bill for 65 cents by the electric light man above mentioned. She immediately called up the farm, and not being able to talk to John, as lie was not there, she asked plaintiff if they bought and charged anything to her while in her home....