Wolf v. Wolf

• Decision Date: 30 August 1917
• Docket Number: 4085.
• Citation: 164 N.W. 106,39 S.D. 347
• Parties: WOLF v. WOLF et al.
• Court: South Dakota Supreme Court

164 N.W. 106

39 S.D. 347

WOLF v. WOLF et al.

No. 4085.

Supreme Court of South Dakota

August 30, 1917

Appeal from Circuit Court, Brule County; Frank B. Smith, Judge.

Action by Gale B. Wolf against J. H. Wolf, Dora Wolf, and A. G Wolf. From a judgment dismissing the action as to Dora Wolf and A. G. Wolf, and for plaintiff against defendant J. H Wolf, and from an order overruling his motion for new trial defendant J. H. Wolf appeals. Judgment and order reversed.

Brown & Brown, of Chamberlain, for appellant.

House & Dyer, of Chamberlain, and Spangler & Haney, of Mitchell, for respondent.

POLLEY J.

The plaintiff, Gale Wolf, brought this action against John Wolf, Dora Wolf, and A. G. Wolf, for the recovery of damages sustained by her because of the alleged alienation of the affections of her husband, David Wolf, by the defendants. John Wolf is a brother of plaintiff's husband, David Wolf. The action was dismissed as to Dora Wolf and A. G. Wolf, and plaintiff had judgment against the defendant John Wolf. From such judgment, and an order overruling his motion for a new trial, John Wolf appeals.

There is no evidence that appellant ever directly advised or counseled respondent's husband, David Wolf, to abandon or desert, or even to neglect, her; but she claims that such abandonment and desertion were the logical and probable result of a long course of malignant conduct on the part of appellant. Over appellant's objection, the trial court permitted respondent to show that appellant had a great dislike for respondent prior to her marriage to his brother, that he opposed such marriage, and that he was heard to say, at about the time the marriage took place, that he had rather follow his brother to his grave than to see him married to respondent. Whether this evidence was competent or not, had it been followed up by other evidence tending to connect it with subsequent events, it is not necessary to determine. There is no such evidence. If the testimony of respondent herself is to be given any credit whatever, she and her husband lived together in perfect harmony, and without any interference whatever by appellant, from the time of their marriage; which occurred in June, 1896, until during the month of May, 1909. It is true that, during a large portion of this time, respondent and her husband were not living in the same community with appellant; but there was no time when there was not sufficient opportunity to interfere, had appellant been so disposed. Evidence of the above facts in no way tended to prove any of the issues of the case, and should have been excluded by the court.

During the last four or five years that respondent and her husband lived together, he was engaged in the banking business, and during a portion of this time, appellant was associated with him in such business. Over appellant's objection, the trial court admitted a large volume of testimony relative to financial troubles growing out of the various banking transactions. This evidence had no relevancy to the issues involved, and was afterward withdrawn from consideration of the jury by the court. While it was undoubtedly admitted with the expectation on the part of the court that it would be connected with other evidence tending to prove the issues in the case, and was withdrawn from consideration of the jury when its irrelevancy became apparent, the impression it made upon the minds of the jury could not have been otherwise than prejudicial to the rights of appell...