Wood v. Miller, 21009.

• Decision Date: 27 March 1928
• Docket Number: 21009.
• Citation: 147 Wash. 251,265 P. 727
• Parties: WOOD v. MILLER.
• Court: Washington Supreme Court

265 P. 727

147 Wash. 251

WOOD v. MILLER.

No. 21009.

Supreme Court of Washington

March 27, 1928

Department 1.

Appeal from Superior Court, Snohomish County; Guy Alston, Judge.

Action by Fred Wood against George Miller. Judgment for plaintiff and defendant appeals. Reversed, with directions.

Edwin H. Flick, of Seattle, John B. Fogarty and O T. Webb, both of Everett, and H. Gordon Chute, of Seattle for appellant.

John J Kennett and W. U. Park, both of Seattle, and Le Cocq & Swanson, of Everett, for respondent.

TOLMAN J.

Respondent by this action seeks recovery of damages for the alienation of the affections of his wife. The cause was tried to a jury, which returned a verdict against the defendant in the sum of $25,000. A motion for a new trial was made, and the trial court, being of the opinion that the verdict was excessive, gave the plaintiff the option of accepting a reduction to $20,000. That option being accepted, the motion for a new trial was denied. Judgment was rendered on the verdict as reduced, and the defendant has appealed from that judgment.

The errors assigned go to the sufficiency of the evidence, the denial of the motion for a new trial, the admissibility of certain evidence, and the refusal to give certain requested instructions.

We do not propose to discuss the evidence in detail. That, indeed, would be impossible, as the record is very voluminous. A sufficient setting for what we have to say is that respondent, Wood, who gave his age as 49 years at the time of the trial below, had been twice married before he married the woman who figures in this action. The wife, Nora Wood, had apparently been married, at least once, before, and had a well-grown son when she married respondent in 1911 or 1912. There was no children born of the marriage. There is no evidence of trouble between the husband and wife before 1915 or 1916; but from then on the story is rather a sordid one, no matter which spouse is believed. The wife was beaten, and her face bruised and eyes blackened on more than one occasion, perhaps due to some provocation on her part; and on most of these occasions the husband was more or less scratched up, perhaps caused by defensive tactics only. The husband and wife became acquainted with appellant probably as early as 1918, but the husband does not seem to claim that appellant paid any undue attention to his wife or in any manner influenced her before 1920, the period mostly covered by the evidence being two or three years following 1920. We think, notwithstanding the many matters referred to in the evidence, the jury might have found that there was some affection between the spouses even later than 1920, as thereafter the wife brought three successive actions for divorce, the first two of which were abandoned and dismissed, and the last only was prosecuted to a decree. It is true that respondent admits that he was several times convicted of criminal offenses and served jail sentences. The wife also was once so convicted and served a jail sentence. These matters do not warrant us in saying, as a matter of law, that either was unworthy of belief, or that thereby the husband, in law, forfeited the affections of the wife. It was for the jury to consider these matters in the light of all of the other facts and circumstances shown in the case, including the evidence thought to show the unfaithfulness of the husband, and to determine where the truth lay and what was the cause of the loss of the affections of the wife.

We do feel, however, in the light of all of the testimony as we read it, that the verdict was in such an amount as to clearly indicate passion and prejudice, and we doubt exceedingly if the reduction made by the trial court was sufficient to purge it of the evils which permeated it.

We have here a couple who had reached middle life, with no children and probably no hope of children, each having been married before, their effection for each other plainly waning, and subject to violent breaks before appellant entered upon the scene, if he ever did so enter. The home was a house of public entertainment, with no showing...