Trumbull v. Trumbull

• Decision Date: 17 February 1904
• Docket Number: 13,384
• Citation: 98 N.W. 683,71 Neb. 186
• Parties: ROBERT S. TRUMBULL v. VIOLA TRUMBULL
• Court: Nebraska Supreme Court

98 N.W. 683

71 Neb. 186

ROBERT S. TRUMBULL v. VIOLA TRUMBULL

No. 13,384

Supreme Court of Nebraska

February 17, 1904

ERROR to the district court for Kearney county: ED L. ADAMS, JUDGE. Reversed.

REVERSED.

Thomas Darnell, L. C. Paulson and George E. Hager, for plaintiff in error.

J. C Stevens and M. D. King, contra.

OLDHAM C. AMES and HASTINGS, CC., concur.

OPINION

OLDHAM, C.

This is an action for damages brought by the plaintiff in the court below against the defendant, her brother-in-law, for alienating the affections of her husband. The material facts underlying the controversy appear to be that plaintiff's husband, Oscar Trumbull, was a minor between 19 and 20 years of age at the time of his marriage. That, before the marriage, plaintiff and her husband each resided in the village of Minden, Nebraska. Plaintiff was of the age of 26 years, and had been engaged in the millinery business for several years in the village of Minden. Her husband was working for the defendant, Robert S. Trumbull, his brother and guardian, in Minden, when he became acquainted with plaintiff. In October, 1901, plaintiff removed to the city of Hastings, Nebraska, and was employed as a saleslady in a dry-goods store at that place. Shortly after her removal to Hastings, Oscar Trumbull went there, and married plaintiff at that place on the 14th day of October, 1901. The marriage license was procured without the consent of the guardian of Oscar Trumbull, on his statement in his application for a license that he was 23 years of age. After the marriage, plaintiff and her husband began housekeeping and lived together as husband and wife, at Hastings, until the month of April, 1902, when the husband abandoned plaintiff, volunteered in the army of the United States, and has since refused to live with plaintiff. In the months of December, 1901, and January, 1902, the defendant, Robert S. Trumbull, wrote letters to his brother, at Hastings, urging him to abandon plaintiff and, according to plaintiff's testimony, persisted in writing similar letters, until he finally persuaded his brother to abandon plaintiff. Defendant, by way of answer to plaintiff's petition, alleges that he was the guardian and brother of plaintiff's husband, and admits that he wrote letters to his brother in the months of December, 1901, and January, 1902, urging him to abandon plaintiff, but alleges, in defense of his conduct, that at the time he wrote these letters he had no knowledge of the marriage of his brother to plaintiff, but believed he was living with her in a state of fornication; that he had reason to believe, and did believe, that plaintiff was an unchaste woman, and that she had been criminally intimate with his brother during her residence in Minden, and that he acted in good faith in advising his brother to abandon plaintiff. That, when he finally learned of the marriage of his brother to the plaintiff, he did not seek to persuade or induce his brother to abandon his wife. Defendant introduced testimony tending to support the theory of his answer, while the testimony of the plaintiff tended to show that defendant knew of the marriage before any of the communications were written to his brother. At the trial in the court below, the jury returned a verdict for plaintiff for $ 1,000 damages. There was a judgment on the verdict, and defendant brings error to this court.

Numerous allegations of error are charged in the proceedings of the lower court, in the briefs of plaintiff in error, only one of which it will be necessary for us to examine, in view of the conclusion we shall presently reach. The instructions given by the court appear to have all proceeded upon the theory that defendant, as guardian and brother of plaintiff's husband, had no right to advise and counsel with his brother and ward concerning his marriage, if he knew he was married, or even if he did not know such fact. Evidently regarding this as the law governing the case, the learned trial judge, in paragraph 9 of the instructions given on his own motion, told the jury:

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