Wagner v. Wagner

• Decision Date: 04 June 1918
• Docket Number: No. 19239.,19239.
• Parties: WAGNER v. WAGNER et al.
• Court: Missouri Supreme Court

204 S.W. 390

WAGNER v. WAGNER et al.

No. 19239.

Supreme Court of Missouri, Division No. 1.

June 4, 1918.

Appeal from Cape Girardeau, Court of Common Pleas; R. G. Ranney, Judge.

Action by Irene Wagner against Moritz Wagner and another. From a judgment on a verdict directed for defendants, plaintiff appeals. Reversed and remanded.

This suit was commenced by plaintiff in the Cape Girardeau common pleas court, on April 15, 1915, against the defendants, to recover $5,000 for her actual damages, and $5,000 for punitive damages, on account of the alleged deprivation of aid, support, companionship, society, protection, and affection of her husband, Wilson Wagner, who is the son and only child of said defendants. The petition charges, in substance, that defendants wrongfully caused plaintiff's said husband to leave and abandon her and to cease living with plaintiff as her husband. The answer is a general denial.

It appears from the evidence that plaintiff, who is the daughter of August Koch, was married to Wilson Wagner, the son and only child of defendants, on or about the 21st day of November, 1911, in St. Louis, Mo.; that prior to their marriage she lived with her father and mother on their farm, about 2½ miles from the farm owned and occupied by defendants; that she was about 20 and her husband about 23 years of age at the date of their marriage; that all of the parties aforesaid lived in Cape Girardeau county, Mo.; that on the evening of November 21, 1911, Wilson Wagner came after plaintiff, took her to his father's residence that night, and on the following morning they went to St. Louis, Mo., and were married, with the consent of her parents and, as she understood from Wilson at the time, with the consent of defendants. They returned from St. Louis, about December 2, 1911, to her father's home, and about two or three days later moved her things to the farm of defendants where her husband had been living. The Plaintiff and her husband lived with defendants, on said farm, after their return from St. Louis, until August 25, 1914, as members of their family, for a period covering about two years and nine months. The acts complained of, as a basis of recovery, will be referred to and considered later. At the expiration of above period, plaintiff left the home of defendants, with her husband, and was taken by him to her father's home. Wilson Wagner remained at the residence of plaintiff's father for a few days after he brought his wife there, and during that time they continued to live together as husband and wife. Wilson Wagner then abandoned plaintiff and returned to the home of defendants, and continued to live with the latter up to the date of trial.

At the conclusion of plaintiff's case, the "defendants asked, and the court gave, the following declaration of law:

"The court declared, as a matter of law, that under the law and the evidence plaintiff cannot recover, and the jury is instructed to return a verdict for the defendants."

To which ruling of the court plaintiff excepted, etc.

The jury, in accordance with said direction, on May 26, 1915, returned a verdict in favor of defendants. Judgment in due form was entered upon said verdict, in favor of respondents. Plaintiff, in due time, filed her motion for a new trial, which was overruled, and the cause duly appealed by her to this court.

Oliver & Oliver, of Cape Girardeau, and Hines & Hines, of Jackson, for appellant. Edward D. Hays, of Cape Girardeau, and Wilson Cramer, of Jackson, for respondents.

BAILEY, C. (after stating the facts as above).

I. This case is before us upon a demurrer to plaintiff's evidence, as the trial court directed a verdict in favor of defendants. The latter produced no testimony, except that elicited from the cross-examination of plaintiff and her witnesses. In passing upon the demurrer, it was the duty of the trial court to consider as true, the testimony of plaintiff and her witnesses, and to allow in her behalf, in considering the evidence, every reasonable inference which a jury might draw from the facts and circumstances in the case. Hanser v. Bieber, 271 Mo. loc. cit. 335, 197 S. W. 68; Turner v. Anderson, 260 Mo. loc. cit. 16-17, 168 S. W. 943; Williams v. Railroad, 257 Mo. 87, 165 S. W. 788, 52 L. R. A. (N. S.) 443; Stauffer v Railroad, 243 Mo. loc. cit. 316, 147 S. W. 1032; Meiley v. Railroad, 215 Mo. 567, 114 S. W. 1013; Irwin v. United Railways Co., 196 Mo. App. loc. cit. 670, 191 S. W. 1130; Meenach v. Crawford, 187 S. W. loc. cit. 882; Dawson v. Chicago, B. & Q. It. Co., 197 Mo. App. 169, 193 S. W. loc. cit. 44.

Plaintiff testified, in substance, that when she and Wilson moved their things to the home of defendants, after their return from St. Louis, the defendants made no preparation for their reception, and they had to fix up their own room without any assistance from defendants; that in March, 1913, plaintiff went to St. Louis, and on her return Mrs. Wagner refused to speak to her for a week and shunned her; that she had brought a few little things home with her, and Mrs. Wagner would not look at them; that she (plaintiff) repeatedly asked Wilson to procure her another home, but he kept urging her to remain with his parents; that while living with defendants, she helped do the housework and scrubbed during the whole two years and nine months she was there; that she helped do the cooking, washing, and ironing, helped clean the house, and worked in the fields; that she helped haul hay and planted corn for three days; that she worked in the garden; that lots of times she did things which she thought was right and defendants objected to them; that Mrs. Wagner objected to plaintiff going to Sunday school and church, and called the church people hypocrites, etc.; that she objected to plaintiff visiting the neighbors. Plaintiff testified that, after urging Wilson to get her another home, he said he would go and see what his papa said about it; that, after seeing his father, he would come back and say, "Papa said he would disinherit me if I left." Plaintiff testified:

That "Wilson went to his mother one day and says: `Mamma, won't you help me? Papa will not help me, and he says he will disinherit me if I leave.' And she said if we didn't like it there for us to leave, and she says, `We cannot give you anything.'" That the above occurred on different occasions, during 1913 and 1914; that in 1914, after Wilson and his father had had a quarrel, Wilson said to him, "We can't live here any longer, we will have to go somewhere else." And his father said, "If you leave here, you don't need to come here any more, and we have not got anything for you if you leave here." That the above occurred in the presence of plaintiff, in May or June, 1913. That she asked Wilson for another home, and he said, "Papa and mamma won't do nothing for us and they say if I leave they will disinherit me." That on August 24, 1914, Wilson, on account of his troubles over his wife's treatment, threatened to shoot himself. That Mrs. Wagner...