White v. White

• Decision Date: 08 June 1907
• Citation: 76 Kan. 82,90 P. 1087
• Parties: WHITE v. WHITE.
• Court: Kansas Supreme Court

90 P. 1087

76 Kan. 82

WHITE v. WHITE.

Supreme Court of Kansas

June 8, 1907

Rehearing Denied July 5, 1907.

Syllabus by the Court.

A failure to enforce chapter 327, p. 545, Sess. Laws 1905, by requiring a plaintiff, who does not reside in the county where suit is commenced, to state in the petition his or her place of residence and post-office address, is error; but where it appears that the defendant is familiar with the facts not stated, the error is harmless and immaterial.

In an action by a wife for the alienation of the affections of her husband, a statement in the petition of the ultimate facts of the alienation and separation is enough without pleading the acts done and artifices used to accomplish the result.

[Ed Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § § 12-28 ½ .]

In such an action, statements of the defendant, made after the parties have separated, are competent evidence when they amount to an admission of responsibility for the acts alleged in the petition.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § § 786, 789.]

The contents of a letter may be shown by secondary evidence, when it appears that the original is not in the possession or under the control of the offering party, and is so situated that such party could not, by the use of the legal means applicable to such cases, have produced it, the same as when the original is shown to be destroyed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § § 595-599.]

Where a witness is describing the manner and attitude of persons engaged in a conversation which he does not hear, it is not improper to permit the witness to characterize the action of one of the speakers as gesticulating "like he was mad," or standing with his head down "as if he was crying."

In an action of the kind mentioned, it is proper for the plaintiff to show, as a motive on the part of the defendant to do the acts complained of, that he entertained a feeling of hatred toward her, and for this purpose it would be competent to show that he had made improper overtures to her, which resulted in disappointment to him.

In actions involving malice, and where exemplary damages may be properly awarded, the financial condition of the defendant may be shown.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, § 499.]

In an action by a wife for the alienation of the affections of her husband, her general reputation for chastity at the time of her marriage is immaterial, and constitutes no defense, where it did not, to some extent, cause the separation.

Error from District Court, Mitchell County; R. M. Pickler, Judge.

Action by May White against Lewis White. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

A. G. Mead, J. D. McFarland, and Burnham & Dashiell, for plaintiff in error.

Pulsifer & Hunt and Kagey & Anderson, for defendant in error.

OPINION

GRAVES, J.

The plaintiff in error is the father-in-law of the defendant in error. She commenced this action against him in the district court of Mitchell county March 15, 1905, to recover damages for alienating the affections of her husband and causing their separation. She recovered a judgment of $2,000, and he brings the case here for review.

The first error complained of is the refusal of the court to require the plaintiff to state her place of residence and post-office address in her petition. It appears from the petition that she was a nonresident of Mitchell county up to within a few days before the action was commenced, and under the provisions of chapter 327, p. 545, Laws 1905, the motion should have been sustained. However, it also appears that the defendant was a frequent visitor at her home and was familiar with her residence and post-office address. The error was therefore harmless.

Complaint is made of the court for refusing to require the plaintiff to make her petition more definite and certain by stating more specifically the facts showing how and in what manner the defendant accomplished the alienation of her husband’s affections. Upon this point, the petition avers that the defendant, about December 25, 1904, conceived an intense dislike for the plaintiff, and thereafter persistently urged, coaxed, and entreated her husband to leave and separate from his wife; that he advised with lawyers as to the best methods by which a separation and divorce could be secured, wrote letters to plaintiff’s husband urging and entreating him to separate from her immediately, and advised him to induce her to consent to a separation by the payment of money, if necessary. He visited the plaintiff and her husband at their home, and there persisted in his efforts to effect a separation, stating to the plaintiff that he would not permit his son to live with her, and by this course of conduct he finally succeeded in causing his son to leave the plaintiff. These averments were sufficient to inform the defendant of what he might expect upon the trial and enable him to make preparation therefor. We do not think this ruling of the court was material error. Nevins v. Nevins, 68 Kan. 410, 75 P. 492.

The plaintiff was permitted to testify to the contents of a letter which she said her husband received from his father, the defendant. This is alleged to be error. The plaintiff found the letter on her husband’s desk, and read it, after which she placed it where it was before. She did not see it afterwards. When they moved out of the house, she made a thorough search, but was unable to find it. We think this evidence was properly admitted. The letter was not in her possession or under her control. It was presumably in the possession of her husband. She could not make a witness of him and compel him to produce it. She was in a position where the letter would be unavailing to her unless she be permitted to state its contents. If it had been shown that the letter was destroyed, this objection probably would not have been made. The same reason exists here for the admissibility of its contents. In either case she was unable to produce the letter.

The plaintiff in error also complains of the admission in evidence of his acts prior to and after the parties actually separated. The plaintiff fixes this date at February 24th. It is not alleged that the defendant accomplished the act complained of in one day, nor is it reasonable to suppose that it could be done within such a short period. A long and persistent course of conduct, consisting of many different transactions, which would be competent and material testimony, might have been required. The evidence here objected to occurred within less than a week prior to the actual separation, and within two days thereafter. Especial complaint is made on account of the admission of a conversation had by a neighbor with the defendant on February 26th, which it is claimed was after the separation. In fact however, the separation had not become final at that time. They last slept together February 23d, but were otherwise together, about the house and premises, until after the sale on the 24th. The plaintiff was still hopeful that a separation would be averted, and, at or about the time the conversation objected to occurred, she made a last appeal to her husband to remain with her. The conversation was admissible evidence against the defendant without...