Warren v. Graham
| Decision Date | 12 February 1916 |
| Docket Number | 30685 |
| Citation | 156 N.W. 323,174 Iowa 162 |
| Parties | DESSIE WARREN, Appellee, v. CLARA E. GRAHAM, Appellant |
| Court | Iowa Supreme Court |
Appeal from Sioux District Court.--WILLIAM HUTCHINSON, Judge.
ACTION at law for the alienation of the affections of plaintiff's husband. The defense was a general denial and a plea of the statute of limitations. No mitigating facts were pleaded. Upon the issues joined, the case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum: of $ 4,875, and defendant appeals.--Modified and Affirmed on Condition.
Modified and Affirmed on Condition.
John T Murphy and George T. Hatley, for appellant.
Gerrit Klay and T. E. Diamond, for appellee.
I.
Plaintiff was married to Dana Warren on May 20, 1891, after a courtship extending over some years. A child was born to them within five months after this marriage, and thereafter four others were born. Plaintiff was about 16 years of age when married and her husband was about 25. Immediately after marriage, they went to house-keeping in Sioux City, where the husband was then employed, but within a year thereafter, they moved to the town of Hull. The husband was an expert sign writer, paper hanger and decorator; and after his removal to Hull, he established a photograph gallery. He and his wife were both fond of music and each developed considerable musical talent. According to the testimony, they lived happily together until about the year 1909, when for some reason, the husband's attitude toward his wife began to change; and finally, about September 1, 1911, he, without warning of his intended separation from his wife, left her and went to the city of Fort Dodge and there set up a studio. Plaintiff followed him to Fort Dodge; but he was cold, rejected her advances, and, during her stay in that city the husband, without indicating to anyone his intentions, so far as the record shows, left Fort Dodge about Christmas of the year 1911 without saying goodbye to his wife, and she has never seen him since. As a matter of fact, he seems to have become a wanderer on the face of the earth, and when last heard from, according to the record, he was at Reno, Nevada, intending to go from there to some place on the Pacific coast. Not long after he left Iowa, plaintiff received from his mother a deed for a house and lot in the town of Hull, which had been acquired during their residence there, which, according to the record, was the only tangible property he had. Plaintiff accepted the deed and is now the owner of this property. Like most men of his type, this husband was of a lighthearted, jovial disposition, given somewhat to drink, at times to excess, and within his means a good provider. As his children grew up, the boys assisted him in his work, and before that, the wife occasionally assisted him at his photograph gallery.
The defendant was reared on a farm near the town of Hull and resided there until the year 1896, when the family moved into a residence near to, if not within, the corporate limits of the town. Her father died in the year 1902, and her mother, in the year 1909. Shortly thereafter, she took up her residence with a brother, some miles from Hull, where she remained until about September, 1910, when she went to Chicago to visit relatives and friends. After that, she went to Missouri, remaining for a time at St. Charles and St. Louis, and finally settled in St. Louis, where she was employed at the time of the trial of this case.
Plaintiff's husband became acquainted with defendant's family in a professional way shortly after he moved to the town of Hull, the defendant at that time being about 15 years of age. He became somewhat intimate with the Graham family, and the two families visited back and forth for a number of years, and until after the Graham family moved into town. The Grahams furnished the Warren family with butter and produce, until a short time before Mrs. Graham's death. The butter and produce were often delivered by defendant either at the house where plaintiff lived or at the husband's photograph gallery. Defendant was very frequently at this gallery, so much so as to arouse plaintiff's suspicions, which she says were finally confirmed by finding a negative of defendant en deshabille, in her husband's collection at the gallery. It is also shown that her husband became very confidential with the Graham family, unveiling to them some of the "skeletons" in his family closet, and defendant was present at this unveiling. About the time of the death of defendant's mother, plaintiff's husband apparently became very much interested in defendant's affairs, and, as she says, she called upon him for assistance in disposing of the property which came to her from her parents. At any rate, he visited her often at this time, going to her house at nights and remaining there each time until a late hour. After her removal to her brother's farm, the husband was called upon to do some work at this place, but, instead of attending to it himself, he and defendant seemingly regarded it as a good opportunity to be in each other's company, and made the most of it. After defendant went to Chicago, she kept up a correspondence with plaintiff's husband, and such letters as we have from defendant contained many terms of endearment and indicated a strong affection on her part for the plaintiff's husband. As the husband's affections for defendant seemed to grow in intensity, his love for his wife seemed to dim in like proportions, and he finally concluded to abandon her. During the last year of defendant's residence in Hull, and just before she went to Chicago, the husband was seldom at home on Sundays, was frequently out late at nights, and, about July 20th of the year 1911, announced to a daughter that he had lost all affection for his wife and that he had found his ideal in another. Broadly outlined, this is the case as made for plaintiff, and it is enough to say at the outset that it is sufficient to justify a verdict in some amount, and that such verdict should stand unless some errors were committed by the trial court which demand a new trial. Several are assigned, and to such as we deem important we shall now devote our attention.
II. At the close of plaintiff's testimony, defendant moved for a directed verdict in her behalf. This motion was overruled; but, as defendant did not elect to stand thereon, but proceeded to introduce her testimony, there was no error of which she may complain. Wiar v. Wabash R. Co., 162 Iowa 702, 144 N.W. 703; Vogt v. Chicago, R. I. & P. R. Co., 164 Iowa 158, 145 N.W. 463, and cases cited. The only way to renew the point was by renewing the motion at the conclusion of all the testimony, by instruction or by motion for a new trial on the ground of the insufficiency of all the testimony to support a verdict. In the motion for a new trial, the point was made; but, as we have said, it is without merit.
III. After the testimony of two of plaintiff's witnesses had been taken, defendant moved to strike out the entire evidence of each. As some of it was competent and material, there was no error here, even if it be conceded that some of it was vulnerable to a motion. Walrod v. Webster County, 110 Iowa 349, 81 N.W. 598; Sullivan v. Nicoulin, 113 Iowa 76, 84 N.W. 978, and many cases cited.
IV. For some reason, which is not apparent of record, and which is not made sufficiently clear in argument, defendant offered to prove the general reputation of plaintiff's husband at Hull regarding his disposition to pay his bills and obligations and as to whether or not he did pay his debts. The trial court would not permit the witness to answer the interrogatories. We have no way of knowing what the answer would have been or the purpose thereof, save as indicated in the briefs filed for appellant, where it is said that the purpose was to show that the husband's reputation was bad and that he did not pay his debts, the thought being that this disclosed his inability to support his wife and family and that they lost nothing as a result of any alienation of his affections. In the first place, counsel did not disclose this purpose to the trial court; and next, even if the purpose had been shown, we do not think the testimony was admissible. Many men in good financial circumstances are slow in paying bills and have a bad reputation in this respect, and it does not follow from such practice or from such reputation that they are not men of financial means, or that they are not good family providers. Two questions may be said to be involved here, in the one ultimate one--the amount of plaintiff's loss in being deprived of the consortium and support of her husband: First, did he make provision for his family and support them as well as his circumstances would reasonably permit; second, what was his financial ability in fact? Neither reputation for paying bills nor the actual fact that he did or did not pay them promptly has any but the most remote bearing on this subject and, as the ultimate facts were susceptible of direct proof, there was no need to resort to the more remote inferences, especially where these remote circumstances may be explained quite as consistently on one theory as another. In support of these views, see Arnold v. Livingstone, 155 Iowa 601, 134 N.W. 101; Porter v. Moles, 151 Iowa 279, 131 N.W. 23.
V. Plaintiff was also permitted to show that, just prior to her husband's abandonment of her, he (the husband) declared his affections for the defendant; spoke of his feelings regarding his...
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