Worth v. Worth

• Decision Date: 01 October 1935
• Docket Number: 1881
• Citation: 48 Wyo. 441,49 P.2d 649
• Parties: WORTH v. WORTH, ET AL
• Court: Wyoming Supreme Court

49 P.2d 649

48 Wyo. 441

WORTH v. WORTH, ET AL

No. 1881

Supreme Court of Wyoming

October 1, 1935

APPEAL from the District Court of Platte County; C. D. MURANE Judge.

Action by Margery T. Worth against G. M. Worth and Kate Worth. From a judgment for the plaintiff, the defendants appeal.

Reversed and Remanded.

For the appellants, there was a brief by John C. Pickett, C. R Ellery, and Bard Ferrall, all of Cheyenne, and oral argument by Mr. Pickett and Mr. Ellery.

The court erred in refusing to give defendants' requested instruction numbered B. Cramer v. Cramer, (Wash.) 180 P. 915; Miller v. Miller, (Iowa) 134 N.W. 1058; Cornelius v. Cornelius, (Mo.) 135 S.W. 65; Spiry v. Spiry, (S.D.) 199 N.W. 778; Williamson v Williamson, (Neb.) 231 N.W. 506; Miller v. Levine, (Me.) 154 A. 174; Kleist v. Breitung, 232 F. 555, (2d Cir.). The court erred in refusing to give defendants' requested instruction numbered C. This instruction presented the rule of distinction between advice given by parents in relation to domestic affairs in alienation cases, from that given by strangers, and the further ruling requiring a preponderance of the evidence that the parents' advice was not given in good faith, but from malicious motives. The court erred in refusing to give defendants' instruction numbered A, with respect to the rule imposing no obligation upon parents-in-law to contribute support. Cooper v. Cooper, (Kan.) 171 P. 5; Caplan v. Caplan, (N. H.) 142 A. 121; Kadow v. Kadow, (Wis.) 219 N.W. 275; Ogg v. Ogg, (Kan.) 260 P. 647. The verdict is not sustained by sufficient evidence and is contrary to law. A careful analysis of plaintiff's evidence supports the foregoing assignment of error. McCollister v. McCollister, (Me.) 138 A. 472; Weber v. Weber, (Nebr.) 248 N.W. 642; McLery v. McLery, (Wis.) 202 N.W. 156; Heisler v. Heisler, (Iowa) 127 N.W. 823; Williamson v. Williamson, supra. The evidence is insufficient to sustain a verdict, in that it appears that the husband's affections for plaintiff, were not alienated by anything said by defendants. Paup v. Paup, (Iowa) 225 N.W. 251. The opening statement of plaintiff's counsel was improper and tended to prejudice the jury against defendants. Eagan v. O'Malley, 45 Wyo. 505; Posell v. Herscovitz, (Mass.) 130 N.E. 69; Lumber Company v. Furniture Mfg. Co., (Va.) 139 S.E. 254. The court erred in admitting immaterial evidence prejudicial to defendants. Lanham v. Wright, (Miss.) 142 So. 5; Southern P. Co. v. Ralston, 67 F.2d 958, (C. C. A. 10); Shepherd v. Lumber Company, 81 S.E. 1064; Wurtzman v. Kalinowski, 251 N.Y.S. 328. The court erred in excluding the offered evidence of witness Natwick, County and Prosecuting Attorney. Caplan v. Caplan, supra. The court erred in overruling defendants' objection to question No. 146, with reference to plaintiff going out prior to the birth of her baby. The court erred in overruling defendants' objection to question No. 153 (Miller v. Miller, supra) and in sustaining plaintiff's objection to question No. 702, and in overruling defendants' objections to questions numbered 1010 and 1013. Leavitt v. Leavitt, (N. J.) 144 A. 186; Dalton v. Martin, (W. Va.) 136 S.E. 47; Cochran v. Cochran, (N. Y.) 89 N.E. 470; Hayward v. Ham, (Mo.) 29 S.W.2d 243. The verdict was the result of prejudice and passion on the part of the jury. Heisler v. Heisler, supra; Slaughter v. Van Winkle, (Cal.) 2 P.2d 789; Thompson v. Thompson, (Wash.) 6 P.2d 617.

For the respondent, there was a brief and the case was argued orally by R. R. Rose, of Casper.

The portions of instruction No. B not included in No. 7 given by the court, were nothing more nor less than abstract statements of law. Instructions B and C differ only in that instruction No. C omits reference to the difference between cases in which parents are the defendants and those in which the defendants are strangers, and also reference to the burden of proof. The evidence clearly shows an effort on the part of defendants to keep plaintiff's husband at their ranch home, and by constant abuse to drive plaintiff away. The authorities cited by appellant differ so greatly from the facts in the present case on the main question of alienation, that they cannot be fairly considered as in point. The main question is discussed clearly in Brunswick v. Insurance Company, (Mo.) 7 A. L. R. 1213, where the authorities on the question are carefully reviewed. The meaning of the word "malice" as used in cases of this character, and the fact that malice may be inferred from conduct on the part of defendants are clearly stated in Brown v. Brown, 124 N.C. 19, 70 A. S. R. 574. Defendants' requested instruction No. A was properly refused, not being material to the proofs. The verdict is sustained by the evidence. Stocker v. Stocker, (Nebr.) 36 A. L. R. 1063. There was no error in plaintiff's opening statement; that is fully shown by the evidence presented at the trial. Objection was made to question No. 90. It was overruled and the question answered. After the answer was given, defendants' counsel objected that it was immaterial, incompetent and irrelevant, but made no motion to strike. 64 C. J. 191; Henderson v. Coleman, 19 Wyo. 183; Lumber Company v. Deposit Company of Maryland, (Wyo.) 24 P.2d 690. Question No. 92 was not objected to on any ground. The testimony of witness Natwick was properly excluded as hearsay and self-serving. Heisler v. Heisler, supra. Caplan v. Caplan, supra, cited by counsel, failed to sustain his contention in any respect. Objection to question No. 146 was properly overruled, it being wholly immaterial, and the same may be said of the overruling of question No. 153. The defendants were sued jointly and an admission of one is competent against the other. 22 C. J. 352. Objections to questions numbered 702, 1010 and 1013 were properly sustained. Instruction numbered 10 contained an accurate statement of the law. Clark v. Clark, (Ind.) 118 N.E. 123; Jones v. Jones, (Wash.) 164 P. 757; Stanley v. Stanley, (Wash.) 68 P. 187. The verdict was not the result of bias and prejudice and the damages were not excessive. 30 C. J. 1148. The case of Stocker v. Stocker, supra, is one in which the facts are closely analogous to those in the instant case. See also Gross v. Gross, (W. Va.) 39 L. R. A. (N. S.) 281; Jones v. Jones, (Wash.) 164 P. 757. Other cases bearing directly upon the present case are: McAllister v. McAllister, (Colo.) 209 P. 788; Lockwood v. Lockwood, (Minn.) 70 N.W. 784; Hollingshausen v. Ade, (Mo.) 233 S.W. 39; 17 C. J. 1005 and 1006.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This is an action for alienation of affection by a daughter-in-law against her parents-in-law. The plaintiff is the wife of Harold Worth, son of G. M. Worth and Kate Worth, defendants herein. Plaintiff sued to recover the sum of $ 35,000 from the defendants. The case was tried to a jury, who returned a verdict for plaintiff in the sum of $ 10,000. Judgment was entered for that amount, and the defendants have appealed. A few brief facts, to elucidate the opinion herein, are as follows:

The defendants, parents of Harold, had a ranch south of Wheatland. Plaintiff, then 22 years of age, was married to Harold, then about 24 years of age, on December 3, 1927. He had been married before and divorced. At the time of the marriage he was working at the mines at Sunrise; the plaintiff was teaching. The young folks moved in with the defendants in the spring of 1928. Everything was harmonious for some time, but plaintiff claims that commencing with the summer or fall of 1928, she was subjected to a systematic unfavorable treatment at the hands of the parents; that they attempted to keep Harold on the farm, when she, plaintiff, felt that it would be better for them to live at some other place. According to her testimony, a bad scene between her and the defendants, particularly Mr. Worth, took place in the summer of 1929. As a result of this and other unfavorable treatment, she went, so she states, to her own folks in Nebraska in the fall of 1929. A few weeks later she joined her husband on a homestead, where they stayed until the severe weather drove them back to the home of the defendants. They were both there until about February, when another scene, this time with Mrs. Worth, drove plaintiff, so she testified, out again, never to return. She again went to Nebraska, where she stayed till spring, when she joined her husband on the so-called Salliday place, some 13 miles from the place of defendants. Subsequent facts, and testimony specially considered, will be mentioned later.

1. The defendants asked the court to give the following instruction "C":

"You are instructed that in an alienation suit by the wife against the husband's parents, the law recognizes the right of the parents to advise and counsel their son in respect to his domestic affairs, and that the law presumes that counsel and advice given by a parent to a son is given in good faith and from proper motives and honest impulses, and that the burden is upon the plaintiff to establish to your satisfaction by a preponderance of all the evidence that such counsel and advice was not given in good faith, but was given through malicious motives directed against her, and unless she has established such facts to your reasonable satisfaction, you will find for the defendants."

Another instruction, named "B" was asked. This was like or similar to the asked instruction "C," except that it contained the further statement reading: "You are instructed that there is a wide distinction between an action by a husband or wife against the parents of either, and one against some stranger who invades the domestic circle and separates husband and wife." It is not necessary to decide whether...