Van Hemelen v. Eads

• Decision Date: 22 May 1922
• Docket Number: No. 1456.,1456.
• Citation: 244 S.W. 942
• Parties: VAN HEMELEN v. EADS.
• Court: Missouri Court of Appeals

244 S.W. 942

VAN HEMELEN v. EADS.

No. 1456.

Kansas City Court of Appeals. Missouri.

May 22, 1922.

Appeal from Circuit Court, Cole County; David H. Harris, Judge.

"Not to be officially published."

Action by John Van Hemelen against Lorenzo M. Eads. From a judgment for plaintiff, defendant appeals. Affirmed.

Irwin & Haley and Ira H. Lohman, all of Jefferson City, J. J. Crites, of Vienna, A. K. Monroe, of Linn, and Barney Reed, of Linn Creek, for appellant.

McGinnis & Smith, of Bowling Green, far respondent.

ARNOLD, J.

This is an action for damages for alienation of the affections of the wife of plaintiff. The facts show that plaintiff and Marie Agnes Naughton, then 17 years of age, were married September 27, 1916, and lived together as husband and; wife until July 6, 1917, when they separated. The husband sued for a divorce in the city court of East St. Louis, Ill., charging abandonment, and by amendment of the petition charged adultery with "one Eads." The decree of divorce was granted by the court finding for plaintiff on both charges. The divorce suit was not contested, although personal service was obtained therein.

The petition herein was filed in the circuit court of Maries county, Mo., and on change of venue was tried in Cole county. In substance the petition charges that from the month of September, 1916, to the month of January, 1920, Agnes M. Van Hemelen was the wife of plaintiff, and that during the intervening period between the month of September, 1916, and the month of September, 1917, and while plaintiff was living, cohabiting with, and enjoying the society, comfort, and assistance of his said wife, the defendant wrongfully and willfully, and with design to alienate the affections of plaintiff's said wife, gained her affections, and sought to persuade her to leave plaintiff, and induced her to become cold and indifferent to plaintiff and to violate her obligations as the wife of plaintiff; that by reason thereof the conduct of his, wife became so intolerable that plaintiff was compelled to procure a divorce from his sold wife; that by reason of the premises plaintiff was damaged, and prays the sum of $15,000 actual and $10,000 punitive damages.

The answer was a general denial. A peremptory instruction in the nature of a demurrer was offered by defendant at the close of all the evidence, and was refused by the court. The jury found for plaintiff in the sum of $2,500, End judgment therefor was entered accordingly. Motions for new trial and in arrest were duly filed, and by the court overruled. Defendant appeals.

There are three assignments of error; the first being that the court erred in refusing to give the peremptory instruction in the nature of a demurrer offered by defendant at the close of all the evidence.

The rule is well established in this state that in the consideration of a demurrer to the evidence and motions and instruct tons in the nature of a demurrer, the trial court Is required to accept as true al or plaintiff's testimony and disregard all of defendant's unfavorable testimony. It is then determined that plaintiff has not submitted any substantial evidence entitling him to go to the jury, the demurrer should be sustained. But if there is substantial evidence tending to sustain the necessary elements in plaintiff's cause of action, the demurrer should be overruled. In;reviewing the action of the trial court thereon, on appeal, the same rule obtains. In Surbeck v. Surbeck (Mo. App.) 208 S. W. 645, 647, this court held:

"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."

This has long been the rule in this state, and further citations thereon are unnecessary.

Here the principal element in plaintiff's case is that of the attempt of defendant to separate the wife from her husband. In support of this charge we have the husband's testimony that he saw and read letters, addressed to his wife by defendant, couched in most endearing and persuasive language. These letters were identified and introduced in evidence. Plaintiff testified that these acts of defendant rendered his condition intolerable, and that by reason thereof he was compelled to leave his wife and to seek a divorce.

Counsel for defendant introduced in evidence letters from plaintiff's wife to defendant, tending to show the loss of her affection for plaintiff, and telling defendant that she loved him only. Defendant offered to prove by plaintiff's wife that these letters were written at the suggestion and instigation of plaintiff, for the purpose of establishing a basis for an alienation suit. This evidence, however, properly was excluded by the court.

The testimony shows that as early as October 3, 1916, defendant knew that plaintiff and Agnes Naughton were husband and wife, and that the letters written by defendant to the wife of plaintiff all were written with that knowledge. On August 14, 1917, defendant wrote plaintiff's wife from Vienna, Mo., saying:

"Sure too bad they couldn't get `your old man' [meaning in the military service] but you don't need to be tied to him unless you want to, this is a free country at least as far as that goes. Well, such is life, I never thought that I would love another man's wife so well that I would say such things, but when you feel like I do about it—that she is your `soul-mate' and belongs only to you—that makes a difference after all, doesn't it S. H.? * * * Bye, Bye, aweetheart, try to forget all about that other fellow, and think only of me, I will love you always, and never be cruel to you."

Tinder the same date, defendant wrote to plaintiff's wife, advising her to write to her father that she wanted to come home, and seeking to have her visit with him at his home, saying:

"Come over S. H., and we will drive to camp meeting all by ourselves—won't that be grand if `tis a long trip, just think how we can be together! Romance is right—and I feel that I want to have just one more bit of heaven before hell and horrors."

Also under date of August 10, 1917, defendant wrote the wife of plaintiff from Vienna, Mo., in part:

"Oh, Agnes, I feel so blue when I think of how much I would give if 1 could be back with you just one year ago, then I did not have to love some other man's wife, but be that as it may, can only have you S. H., and want to be with you just the same. I am writing your Pa and Ma and I told them that John took your clothes and money away so you couldn't come, and how contrary he was so that he wouldn't speak to you. You see they are all worked up about it, and I told them not to tell you anything about me telling them that, so you see they will think I tell them everything `C' ha, ha. * * * It wouldn't do for us to tell them everything we know about each other, would it, darling? * * * If you are going to `turn me down' for him in the end, I...