Willey v. Howell

• Decision Date: 29 September 1914
• Parties: WILLEY v. HOWELL.
• Court: Kentucky Court of Appeals

169 S.W. 519

159 Ky. 805

WILLEY v. HOWELL.

Court of Appeals of Kentucky.

September 29, 1914

Appeal from Circuit Court, Hickman County.

Action by E. W. Howell against M. B. Willey. Judgment for plaintiff and defendant appeals. Reversed, and new trial directed.

Bennett Robbins & Robbins, of Clinton, and Robbins & Robbins, of Mayfield, for appellant.

R. L Smith and J. D. Via, both of Clinton, for appellee.

CARROLL J.

The appellee, Howell, brought this action against the appellant Willey, to recover damages on the ground that the appellant had wrongfully and maliciously alienated the affections of his wife and persuaded and influenced her to abandon him. On a trial of the case there was a verdict and judgment in favor of the appellee for $1,500. A reversal of the judgment is asked, for reasons that will be noticed in the course of the opinion. Before, however, taking up the assignment of errors, it will be well to give a brief history of the case and so much of the evidence as appears to be necessary to illustrate the issues.

In May, 1910, the appellee married the daughter of the appellant, and soon afterwards they began keeping house a short distance from the home of the appellant. They lived together until January, 1913, when the wife of appellee, taking with her the two children that were born of the marriage, left his home and took up her residence with the appellant. A very short while afterwards this suit was brought. It also appears in the record, although in an incidental way, that the appellee brought a slander suit against the appellant, and that the wife of appellee brought a suit against him for divorce and alimony.

It seems that all of these people lived on perfectly agreeable and friendly terms until some time in November, 1911, when a little difference came up between the appellant and appellee, growing out of a business transaction. After this matters grew worse between them; first one trifling thing and then another stimulating the animosity that soon culminated in a bitter estrangement. Finally, in December, 1912, the appellant (as shown by the evidence of appellee) accused the appellee of having a loathsome disease, and said that he had been trying for several months to get his wife to leave him. A few weeks after this another wordy altercation took place between appellant and appellee, and there is evidence to the effect that appellant insisted that his daughter leave appellee and go to his home, but she did not go at this time. A few days afterwards, however, the appellant came to the house of appellee, and a conversation that took place between appellant, appellee, and the wife of appellee, in which threats of suits and other disturbing matters were brought up, ended in the wife of appellee and the children going to the home of appellant.

In short, the evidence for appellee tended to show that he and his wife were living happily together until their pleasant relations were broken up by the appellant, who not only falsely charged appellee with having a loathsome disease but with saying that he had contracted it from his wife. It further appeared from his evidence that the appellant wrongfully persuaded his wife to leave him.

The evidence for appellant in substance was that some time in December, 1912, he learned from the wife of appellee that appellee had a loathsome disease, and that appellee charged that he had contracted the disease from her. He also related, at some length, conversations he had with his daughter concerning the trouble with her husband, all of which tended to show that appellee treated his wife badly and made cruel accusations against her virtue. He said he did not make any effort to persuade his daughter to leave appellee, and that, when she had made up her own mind that she would not live with him longer, he told her to take her children and come to his home. He admits that he charged appellee with having the disease, and says that he believed he was afflicted with it. And his evidence tended to show that he did not do anything to contribute to the bad relations between appellee and his wife, or to bring about a separation between them, until after his daughter told him that appellee had the disease and accused her of giving it to him, and after this, when his daughter had made up her own mind not to live with appellee, he took her and the children to his home.

There is in the record a great deal of evidence, expert and otherwise, conducing to show that appellee was not afflicted with a loathsome disease, and other evidence to the effect that he was. But whether he was or not was really not so material a question in the case, except in so far as it served to illustrate the real issue, which was whether the wife of appellee left his home of her own accord or was wrongfully persuaded and influenced to do so by her father.

The first error complained of is that appellee was permitted to relate conversations had with his wife in the absence of appellant. Although this error in the admission of evidence was cured by an instruction of the court, we might add that it was not competent for appellee to relate any conversations that took place between himself and his wife in the absence of appellant or some other person who might testify to what occurred. Leucht v. Leucht, ...