Wohlfort v. Wohlfort

• Citation: 263 P. 1062,125 Kan. 234
• Decision Date: 11 February 1928
• Docket Number: 27,841
• Parties: ANNA F. WOHLFORT, Appellee, v. LOUISE C. WOHLFORT et al., Defendants; BESS M. WOHLFORT and CARRIE L. SANDELL, Appellants
• Court: United States State Supreme Court of Kansas

263 P. 1062

125 Kan. 234

ANNA F. WOHLFORT, Appellee, v. LOUISE C. WOHLFORT et al., Defendants;

BESS M. WOHLFORT and CARRIE L. SANDELL, Appellants

No. 27,841

Supreme Court of Kansas

February 11, 1928

Decided January, 1928

Appeal from Republic district court; JOHN C. HOGIN, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. HUSBAND AND WIFE--Alienation of Affections--Parents and Sister of Spouse--Evidence. In an action by a wife to recover damages from her husband's mother and sisters for alienation of the husband's affections, the record considered, and held, the evidence was insufficient to support a verdict and judgment for plaintiff.

2. SAME--Alienation of Affections--Parents and Sister of Spouse--Rule as to Weight of Evidence. The rule that "to support an action against parents-in-law for alienating their son's affections from his wife, a much stronger and clearer case is required to be established than against a stranger," also applies to the sisters of the husband.

Park B Pulsifer, Clyde L. Short, both of Concordia, C. W. Butch, B. I. Litowich and La Rue Royce, all of Salina, for the appellants.

W. D. Vance, R. E. McTaggart and H. H. Van Natta, all of Belleville, for the appellee.

Hopkins, J. Burch, J., not sitting.

OPINION

HOPKINS, J.:

Plaintiff brought this action against Louise C. Wohlfort, mother of her husband, and Bess M. Wohlfort and Carrie L. Sandell, sisters of her husband, for damages for having alienated her husband's affections. A demurrer to the evidence by Louise Wohlfort was sustained, but judgment was rendered against the husband's sisters and they appeal.

The facts are substantially these: Anna F. Wohlfort and her husband, Axel T. Wohlfort, were married January 25, 1911. For seventeen years prior thereto she had lived in Chicago. She was an old acquaintance of her husband and his family. At the time of the marriage the Wohlfort family consisted of Thure Wohlfort, the father; the mother, Louise C. Wohlfort; Carrie L. Sandell, Bess M. Wohlfort, and Axel. The father died in 1916, leaving a large estate, and a will under the terms of which his property was left to his wife and daughter Bess. From the time of their marriage in January, 1911, until May, 1922, the plaintiff and her husband lived on a farm of 320 acres near Scandia belonging to the mother, Louise C. Wohlfort. In May, 1922, they moved to Chicago, where the parents and family of the plaintiff resided. At that time they were heavily involved at the bank in Scandia, and the mother did not wish them to move away. They started for Chicago with an old Buick automobile, $ 50 in cash a present from the mother, and $ 25 they had borrowed from the bank. In Chicago they purchased the furniture for a rented flat with money borrowed from plaintiff's brother-in-law. While in Chicago the husband worked at various jobs. The plaintiff became ill, in the fall underwent a major surgical operation and was in the hospital for several weeks. More than a year before the plaintiff and her husband moved to Chicago, Carrie Sandell moved from Scandia to Topeka. During plaintiff's illness, her sister Emphrey, who lived in Chicago, under date of October 31, 1922, wrote the defendant, Carrie Sandell, and to the mother and sister Bess at Scandia suggesting they help Axel and plaintiff. After plaintiff returned home from the hospital, her husband concluded to go to Topeka in quest of work, Carrie Sandell having written him she believed she could help him get work there. The plaintiff and her husband discussed the move with plaintiff's sister, who took Axel to the train when he left for Topeka, December 15, 1922. After reaching Topeka, he attempted to procure work but failed. Shortly thereafter, during the Christmas holidays of 1922, Axel went to Scandia to visit his mother and sister Bess, remained there about two weeks and then returned to Topeka. Failing to get work in Topeka, and having earned no money, he went, in the spring of 1923, to the home of his mother near Scandia. He carried on a correspondence with plaintiff until March 19, 1923. In September, 1923, the plaintiff returned to Republic county. A week later, without having talked to her husband or made any effort to do so, she commenced an action against him for alimony, joining as defendants the mother, Louise C. Wohlfort and Bess M. Wohlfort, alleging in substance that the will of the father, Thure Wohlfort, had been withheld from probate for more than three years, and that by reason thereof her husband Axel had a one-sixth interest in the real property of which Thure Wohlfort had died seized. She was successful in having the court set off to her as permanent alimony a one-sixth interest in 786 acres of the land owned by Thure Wohlfort at his death, and this court affirmed the judgment. ( Wohlfort v. Wohlfort, 123 Kan. 142, 254 P. 334.)

At the time the plaintiff and her husband moved to Chicago, and since the death of Thure Wohlfort, the widow, Louise, and the appellant Bess, have continued to live alone on the home farm near Scandia. The mother was old and Bess assisted in looking after the property. After Axel left, the mother paid to the local bank at Scandia his note of $ 1,253.76. While plaintiff was in the hospital or later, the mother, Louise, through the defendant, Bess, sent Axel on November 2, $ 200, and on November 16, $ 300, to pay for the surgeon's and hospital bills. About the same time, the mother and Bess sent other and additional sums to Chicago for Axel and plaintiff. The last item paid was a note of $ 233 given by Axel to plaintiff's brother-in-law for the money with which they had purchased the furniture in the flat. This was paid by the mother after Axel left Chicago and after receipt of letters from plaintiff and her sister in relation thereto.

A contention by the defendants that the evidence was insufficient to sustain the judgment is, we think, well founded. The plaintiff sought to show a conspiracy between the defendants to cause a separation between the plaintiff and her husband in 1912, some ten years before the separation. The father, Thure Wohlfort, was charged as being their agent. The plaintiff testified that difficulties arose between her and the mother and sisters of her husband about July, 1912. That--

"We were at the Wohlfort's, and there was some difficulty that took place during the time of eating dinner, and we were just talking about being fat or thin, and Mrs. Sandell said that we should compare them the same as we would an animal--a hog, for instance; that a fat hog was better than a thin hog. There were three thin ones there, Mr. Sandell, Mr. Axel Wohlfort and myself; and I said, 'Harvey, stand up there; you are one of us,' and Mrs. Sandell got very mad at me for that remark, but it was meant just for a joke, and I meant no offense whatever."

And substantially on another occasion:

"The first of August, 1912, my sister, Mrs. Jones and my husband and myself were walking down the street in Scandia, going east to get our team to drive home, and Bess came up after us or back of us and said, 'Axel, mother wants to see you at Carrie's.' And my sister and I walked on slowly, and Axel stood and talked for a minute and we went on to get our team, and going down there we stopped in front of Sandell's and Mrs. Sandell and Mrs. Wohlfort and Bess all came out to the walk and the first word that was spoken Bess said, 'Anna, mother don't want to see you,' and the next thing that happened, Carrie stepped forward and shook her fist in my face and said, 'We were happy until you came into our family.' Then Mrs. Wohlfort said, 'Axel, I am going to faint, come and catch me.' And with that he jumped out of the buggy and they took Mrs. Wohlfort into the home and I suppose they called a doctor, because I saw him come down. Bess came out then and said, 'Anna, drive away; I can't stand to look at you. We will send father up to settle this with you.'"

Plaintiff further testified that the father came to her house on the farm and said that the women folks told him that she and Axel had had trouble, and sent him up to ask her how much she would take to move back to Chicago; that in reply she stated: "Father Wohlfort, I didn't get married to be paid off to leave my husband, and Axel and I get along all right." She also testified concerning interference by defendants with her husband, to the effect that her husband "would never sell or buy anything unless he consulted them." Also that on one occasion:

"We were in the kitchen, Mrs. Wohlfort, Bess and I. Bess was washing dishes and I was drying them, and Mrs. Wohlfort proceeded to tell me that they had bought everything we had, even the stove we cooked on and the table we ate on, and that sort of thing; I didn't think she was right about it, and I began to figure up some of the things we had done about putting the different improvements on the farm and proceeded to say that we had got several things and put on the farm, and that I thought that ought to offset the claim that she claimed was owed her; and she began to walk the floor and wring her hands and said, 'If I faint call the doctor,' and Bess sent me to call Axel, and I went out and called him. As he came in he said, 'Oh, pshaw, mother, why do you act like this?' And then Mrs. Wohlfort at another date when she and I were alone said that she thought that each person should take care of their own children."

Delma Nelson, a witness for plaintiff, testified to a conversation with Axel Wohlfort in 1914 or 1915:

"He said he had to do absolutely as they (defendants) said; that he couldn't do anything the way he wanted to do it; and that he was under their thumb, and that he would be disinherited unless he done as they said."

With...