Tucker v. Tucker

Citation74 Miss. 93,19 So. 955
CourtMississippi Supreme Court
Decision Date04 May 1896
PartiesALBERT TUCKER v. ADA TUCKER

March 1896

FROM the circuit court of Lee county HON. NEWNAN CAYCE, Judge.

Ada Tucker sued Albert Tucker, her husband's father, charging in her declaration that the latter had maliciously enticed persuaded, and induced her husband, Norman Tucker, to abandon her. This charge was denied, and the case was presented to a jury. The testimony was conflicting. On the cross-examination of the plaintiff's most material witness, Immogene Hyatt she was asked by appellant's attorney: "Were you not arrested by the police of Indianapolis, in January or February of this year, in a house of ill fame, with a man styling himself Wilson?" The court sustained an objection, and the question was not answered. Upon re-examination of the witness by plaintiff's attorney she testified concerning her arrest, and claimed that she was entrapped by Wilson, who was a private detective employed for the purpose, and her testimony tended to show that Wilson was in the employ of appellant. After this, the appellant's attorney was denied the right to cross-examine the witness concerning the Indianapolis episode. The jury found for the plaintiff, and awarded her ten thousand dollars' damages. Appellant's motion for a new trial was overruled.

Reversed and remanded.

Allen & Robins, for appellants.

The court below erred in unduly limiting the cross-examination of the witness, Immogene Hyatt. The case mainly depended upon her testimony, and appellant should have been permitted to cross-examine her touching the "scheme" which she claimed culminated in her arrest by the police of Indianapolis in a house of ill fame.

Malice is of the essence of a suit like this against a parent, and the instructions given for the plaintiff are wrong, because they negative or obscure this essential element of the case. Chancellor Kent, the great American jurist, in one of his happiest opinions, in which he argues the question with force, shows conclusively that, before any action can be maintained against the parent, malice must be alleged and proven. Hutcheson v. Peck, 5 Johns., 195. The same doctrine is announced in White v. Rose, 47 Mich. 174. See, also, Smith v. Lyke, 13 Hun (N. Y.), 204; Reed v. Reed, 6 Ind. App., 317; Railsback v. Railsback, 12 Ind. App., 659.

The case of Mehrhoff v. Mehrhoff, 26 F. 13, is quite an interesting one on the subject. There a demurrer to a declaration against a father for enticing away his son was sustained because the declaration did not charge that the father had, in what he was alleged to have said to the son, imputed to the wife any offense against his marital rights. The case decides emphatically that to hold the father liable he must have made such a charge and it must have been false. This is good sense and good reason, as well as good law, for a man is only held, in ordinary transactions, to be accountable for the ordinary and necessary consequences of his acts. If a man loves his wife, no imputation against her by anyone, save of broken vows or moral turpitude, would induce him to leave her or would cause him to cease to love her. We cite the court to the following additional authorities: Schouler on Dom. Relations, secs. 64, 65, pp. 57, 58; Cooley on Torts, 228, note; Webb's Pollock on Torts, 271 and note; Bennett v. Smith, 21 Bar., 439; 31 Central Law Journal, 32, note.

Sykes & Bristow, on same side.

The question lying at the very foundation of the action is the "quo animo, " or the intent of the parent in advising the child; and the presumption is always in favor of the fairness and innocence of a parent's counsel to his child. Where it is claimed that the estrangement and abandonment was caused by the advice of a parent, it is much more difficult to make out a proper case for damages than where the defendant is a third party or stranger. The line of demarcation between parental admonition and advice given from a sense of duty on the one hand, and that same counsel colored by malice on the other hand, is difficult to trace, and it must be borne in mind that all presumptions are in favor of the parent's good faith. If a stranger, one not authorized to counsel husband or wife as to their marital relations, by uncalled for advice, causes an estrangement of conjugal affection, the law would stamp such conduct, though of the same nature as that which, in a parent, would be innocent or even praiseworthy, as malicious and as unlawful officiousness. The relationship of the party advising to the party advised necessarily constitutes an important factor in the process of determining the animus of the advice; a parent is given a much wider latitude in such cases than a stranger. Hutcheson v. Peck, 5 John., 196; Schouler's Dom. Rel., 57, 58; White v. Ross, 47 Mich. 172; Mehrhoff v. Mehrhoff, 26 F. 13; Payne v. Williams, 4 Bax. (Tenn.), 583; Bennett v. Smith, 21 Barb., 439; Burnett v. Burkhead, 21 Ark., 79; Winsmore v. Greenbank, Willes' Rep., 581.

The rules of law above stated, and so abundantly supported by well-reasoned authority, were disregarded by the court below, both in its rulings on questions of evidence and in granting the instructions given for the plaintiff.

The court certainly erred in not allowing the plaintiff's witness, Immogene Hyatt, who was the very backbone of the plaintiff's case--the sine qua non of its institution and maintainance--to be cross-examined concerning the "scheme" by which she claimed to have been entrapped into the brothel at Indianapolis. No better illustration of "technicality run mad" can be found than the ruling of the court below on this subject.

Blair & Anderson, and Finley & Long, for appellee.

The main question, and one vital to the case, is: Has a wife a right of action against a third person for procuring her husband to abandon her? Some courts, and some authorities, we frankly confess, hold that she has not. But we think these decisions and authorities are founded on the common law view of the personal rights of the wife, and her identity in law with the husband. These distinctions and discriminations, if ever just and true as applied to this question, have, we think, been all swept away by legislation. The legislation of Mississippi on this subject is of a distinguished character, and that it is so is a matter of pride to every gentleman. We respectfully refer to the following authorities: Williams v. Williams, 37 P. 614; Haynes v. Nawlin, 129 Ind., 581; Adams v. Main, 3 Ind. App., 232; Holmes v. Holmes, 133 Ind., 386; Railsback v. Railsback, 40 N.E. 276.

Argued orally by J. Q. Robins, for appellant, and by J. A. Blair, for appellee.

WOODS J. WHITFIELD, J., specially concurring.

OPINION

WOODS, J.

The action of the court below is complained of by the appellant in twenty-one assignments of error. We notice such only as are necessary to the determination of this appeal.

The sixth, seventh, eighth, and ninth assignments may be disposed of together, and briefly.

The conversations had between appellant and appellee, which, it is alleged, were improperly permitted to go to the jury, because not given notice of in the bill of particulars, occurred long after Norman Tucker had deserted the appellee, and were inadmissible as evidence showing, or tending to show, the substantive offense charged in the declaration. That offense, if ever committed, was long past, and the subsequent conversations of appellant, if offered as evidence to show the independent fact of desertion by reason of appellant's wrongful persuasion and inducement thereto, were competent, in this aspect, only if they were in the nature of confessions. That they were not of the character of confessions is plain, and, looked at as they are by complaining counsel, they were incompetent. But, looked at as evidence showing, or tending to show, the motive of appellant in his supposed wrongful action, they were competent; for, as counsel for appellant ably and correctly argue throughout their exhaustive brief, the motive of the appellant was a question of the first importance. If these conversations are given their fair and legitimate construction, they should be found to be helpful to the defense, for, in one of them, the appellant--the father of appellee's husband--expressed to appellee the opinion that it would be best for appellee and her husband to remain apart. But, however a jury may regard this, we think they were competent as tending to show motive in appellant.

The tenth, eleventh,...

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