Weaver v. Lehman

• Decision Date: 30 June 1937
• Citation: 107 S.W.2d 81,341 Mo. 378
• Parties: Arthur J. Weaver, Appellant, v. Pauline Lehman
• Court: Missouri Supreme Court

107 S.W.2d 81

341 Mo. 378

Arthur J. Weaver, Appellant, v. Pauline Lehman

Supreme Court of Missouri

June 30, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Affirmed.

Earl M. Pirkey for appellant.

Where a parent or other relative induces a wife to leave or remain away from her husband or withholds the wife from the husband or prevents him from seeing his wife and this results in a permanent separation such person is liable for damages to the husband. Grubb v. Curry, 72 S.W.2d 863; Porter v. Porter, 258 S.W. 76; Hollinghausen v. Ade, 289 Mo. 362; Nichols v. Nichols, 147 Mo. 400.

Foristel Mudd, Blair & Habenicht and Claude W. McElwee for respondent.

(1) The court properly gave the instruction at the close of plaintiff's case that under the law and the evidence the verdict of the jury must be for the defendant because there was no evidence that defendant caused the separation between plaintiff and his wife, or that defendant caused plaintiff's wife to remain away from plaintiff. Howard v. Boyle, 73 S.W.2d 228, 335 Mo. 435. (2) In an action for alienation of affections, the burden is upon plaintiff to establish by clear, cogent and convincing evidence that defendant, without good cause and maliciously caused plaintiff's wife to separate and live apart from plaintiff, which facts plaintiff's evidence did not show. Beckler v. Yates, 89 S.W.2d 650; Fronk v. Fronk, 159 Mo.App. 543, 141 S.W. 692; Miller v. Miller, 122 Mo.App. 693, 99 S.W. 757. (3) This being an action for alienation of affections by husband against his wife's mother, it is presumed that the wife's parent acted with just cause and in good faith, and the burden is on plaintiff to make out a clear case of want of justification, which plaintiff's evidence did not show. Beckler v. Yates, 89 S.W.2d 650; Allen v. Forsythe, 160 Mo.App. 262, 142 S.W. 820; Fronk v. Fronk, 159 Mo.App. 543, 141 S.W. 692. (4) Plaintiff had the burden of showing not only that his wife's mother caused the alienation of his wife's affection for him, but also that defendant knew that her conduct in doing so was wrongful and was done for that purpose, and that such conduct was prompted by malice, which facts plaintiff's evidence did not show. Beckler v. Yates, 89 S.W.2d 650; Raleigh v. Raleigh, 5 S.W.2d 689; Fronk v. Fronk, 159 Mo.App. 543, 141 S.W. 692. (5) Defendant, being the mother of plaintiff's wife, a presumption exists that she acted under the influence of natural affection, and for what she believed to be for the best welfare of her child, and in order for plaintiff to be entitled to have his case go to the jury, he had the burden of proving wrongful acts of defendant which caused the separation and that they were prompted by malice, which facts plaintiff's evidence did not show. Raleigh v. Raleigh, 5 S.W.2d 689; Allen v. Forsythe, 160 Mo.App. 262, 142 S.W. 820. (6) There was no substantial evidence tending to establish that defendant interfered with plaintiff's marital relation, and no substantial evidence tending to establish that any conduct of defendant in regard to plaintiff's marital relations had been inspired by wrongful and malicious motives calculated to cause the alienation of plaintiff's wife's affection for him. Howard v. Boyle, 73 S.W.2d 228, 335 Mo. 435; Beckler v. Yates, 89 S.W.2d 650.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

This is an action for damages for alleged alienation of the affections of plaintiff's former wife by her mother who is the sole defendant. At the close of the evidence on the part of plaintiff the defendant offered an instruction in the nature of a demurrer to the evidence which the trial court gave. After the instruction was given, but before the cause was finally submitted to the jury, plaintiff took a nonsuit with leave to move to set same aside. Thereafter and in due time plaintiff filed his motion to set aside the nonsuit and for a new trial which was, by the court, overruled and thereupon a judgment was entered dismissing plaintiff's cause of action. Plaintiff appealed and as the petition prays actual damages in the amount of $ 50,000 and puntive damages in a like amount, a total of $ 100,000, the appeal comes to this court.

The petition, filed in August, 1933, in the Circuit Court of the City of St. Louis alleges that plaintiff and Doris L. Lehman were married in September, 1929, and from that date until on or about July 1, 1933, lived together as husband and wife; that "defendant (the mother of the said Doris L. Lehman) willfully, intentionally, and maliciously enticed, influenced and induced plaintiff's said wife to leave and abandon him, etc.;" and that "since said abandonment, the defendant has willfully, wrongfully, . . . and maliciously detained and harbored plaintiff's wife and kept her separate and apart from plaintiff." The answer was a general denial.

The sole question presented for review is the sufficiency of the evidence, on the part of the plaintiff, to make a submissible case. In cases of this kind wherein parents are defendants the appellate court will subject the evidence to a close and careful scrutiny in determining its substantiality. [Howard v. Boyle, 335 Mo. 435, 447, 73 S.W.2d 228, 235.] We therefore undertake to state in a full, and somewhat detail, manner the evidence upon which defendant's demurrer was ruled. The evidence consists of the testimony of two witnesses, that of plaintiff himself and one other. The testimony of this other witness is of such slight consequence as to be of no practical probative value. Plaintiff's case therefore stands or falls on his own testimony, the more salient parts of which, stated in a narrative and chronological form, follows.

In September, 1929, plaintiff, age nineteen years, enrolled at the Arkansas State A. & M. College at Jonesboro, Arkansas. Prior thereto he had lived with his parents at East St Louis, Illinois, where he became acquainted with Doris Lehman. At about the time plaintiff entered the Arkansas College, Doris Lehman, age sixteen years, entered school at Notre Dame Academy at Belleville, Illinois, a private Catholic school. She was a member of the class "corresponding to the first year of high school." Doris' parents, the defendant and her husband, went to California. After plaintiff entered the college at Jonesboro, Arkansas, he and Doris carried on a correspondence and shortly thereafter, sometime in September (1929), without the knowledge or consent of her parents, Doris went to Jonesboro, Arkansas, to visit plaintiff. During this visit they were married. Plaintiff procured a marriage license by representing that he was twenty-one years and Doris eighteen years of age. As stated they were at the time of the ages of nineteen and sixteen respectively. They agreed at the time "to keep the marriage a secret for two years" and Doris returned to school at Belleville, Illinois. About three weeks after the marriage plaintiff got a ride to St. Louis with a salesman, arriving there about nine-thirty on Saturday night. He met Doris that night for a few minutes at Eads Bridge Station. The next day, Sunday, she called for him at his parents' home with her parents' automobile and they went for a drive during which they resolved to tell their parents of the marriage. They went to the Lehman home and told Mr. and Mrs. Lehman of the marriage and then called plaintiff's mother, by telephone from the Lehman home, and told her. There is no evidence whatever that either Mr. or Mrs. Lehman protested or even expressed disapproval. They seemed to have accepted the situation without complaint and their conduct at the time and immediately subsequent certainly evidenced a purpose on their part not to interfere or interpose obstacles. In fact they continuously from that time to the time of separation extended aid to these young folks as will appear from the subsequent recital of facts appearing, as will be remembered, from plaintiff's testimony. On either Monday or Tuesday following, plaintiff and Doris went to Jonesboro, Arkansas, where he resumed his study in the college and they commenced their marital life. Plaintiff had no funds or property, was not working at Jonesboro and his only income was $ 35 a month which his parents sent him. He said he thought he had a prospect of earning some money as a preacher while he was pursuing his studies at Jonesboro but that "never materialized." However the defendant regularly sent $ 35 a month to her daughter and plaintiff and sent them additional checks from time to time between these regular monthly remittances. This continued throughout the school year and thus plaintiff was enabled to continue in school and have his wife with him. Doris did not go to school at Jonesboro. Doris was "of the Catholic faith." Plaintiff was a member of a Protestant church, the Christian Church. She ceased attendance on the Catholic Church, attended church with her husband at Jonesboro and after "three or four months joined" that church. There is no least intimation that defendant sought in anyway to dissuade or influence her daughter against this course. While plaintiff and Doris were living at Jonesboro, Mr. and Mrs. Lehman went to Hot Springs, Arkansas, where they remained for some time in order that Mr. Lehman, who was in very poor health, a paralytic condition, might take treatments. They drove to Hot Springs in their automobile and on their way went by Jonesboro to see plaintiff and their daughter. Plaintiff and Doris went with Mr. and Mrs. Lehman from Jonesboro to Hot Springs and then drove the Lehman automobile back to Jonesboro so that they might use it there during the week and visit Mr. and Mrs. Lehman on week-ends at Hot Springs. They went to Hot Springs on Friday evening and visited with Mr....