Hollinghausen v. Ade

This action was brought in the Jackson County Circuit Court, Missouri, in Kansas City, by plaintiff, Grace D. Hollinghausen, against defendants, Carl Ade and Emma Ade, his wife, to recover actual damages in the sum of $25,000, and punitive damages in the sum of $25,000 for alienating the affections of her husband, Carl Hollinghausen, and thereafter preventing a reconciliation between them. The petition alleges that plaintiff and Carl Hollinghausen were lawfully married at Salina, Kansas, on the — day of February, 1910, and thereafter lived happily together until the 31st day of March, 1917. That May the 11th, 1917, she obtained a divorce from her said husband on account of certain grievous misdeeds of her said husband, which are fully set out in "Exhibit A" in appellant's abstract. It further alleges a wicked and malicious conspiracy between defendants, who well knew they were so living together as man and wife, to bring about an alienation of the affections of her said husband, and a wicked and malicious attempt (which it is alleged was successful) to prevent a reconciliation between them, and prayed damages as above stated. Defendants answered with a general denial of the averments of the petition, and pleaded as defensive matter the same divorce proceedings; that said divorce *Page 371 was obtained by plaintiff against defendant on account of wrongs, by default, he having been duly served with summons. That pending said divorce proceedings a written contract was entered between plaintiff and her said husband by virtue of which her right to alimony and all rights she had in defendant's estate on account of being his wife were fully adjusted and finally settled for the sum of $7,500; that said adjustment was made voluntarily and with full knowledge on the part of plaintiff, and that it operated to estop her from recovering in the instant action. The reply was a general denial of the new matter. With the issues thus framed, trial was had before the court and a jury, which returned the following verdict: "We, the jury, find for plaintiff and assess her actual damages at ten thousand dollars. We further allow her exemplary damages at five thousand dollars. "GEORGE W. ERNST, Foreman." Two days thereafter, to-wit, February 19, 1919, the following record entries were made. "Now the court, of its own motion, on account of errors in instructions, sets the verdict aside in this case as to Carl Ade and grants Carl Ade a new trial of this cause. "Now plaintiff dismisses this cause as to Carl Ade, defendant herein. "Now the court orders judgment entered in accordance with the verdict of the jury." To which both defendants excepted. Said judgment was to the effect that plaintiff have and recover from defendant the amount specified in the verdict with costs of suit and that she have execution therefor. Then followed the usual judgment of dismissal as to Carl Ade. Defendants offered no testimony. We will further refer to the facts hereafter. *Page 372 I. The first assignment will be determined by the evidence. Under this assignment it is insisted that the evidence was insufficient to establish a common-law marriage between plaintiff and Carl Hollinghausen. Without setting the testimony on this point out in full, it is sufficient to state that it shows that these parties, at Salina, Kansas, on the — day of February, 1910, entered into a present agreement to become man and wife; that in a few days they returned to the home of the mother of plaintiff, at Kansas City, Missouri, and introduced themselves as man and wife and received her blessings; that he provided an elegant home whereCommon-Law he and plaintiff resided happily together until MarchMarriage. 31, 1917, about seven years; that during that time they were both anxious to have a child born, but on account of some impediment standing in the way, he had an operation performed on her which cost him about $350; that during all this time they treated each other as man and wife, were introduced as man and wife, and were so regarded among their friends and neighbors. The deposition of Emma Ade was taken by plaintiff and introduced in evidence which we quote from as follows: "Q. Prior to that time where was his home? A. Why, he lived at Twenty-fifth and Troost. "Q. In an apartment? A. Yes, sir. "Q. And who lived with him or with whom did he five there at Twenty-fifth and Troost? A. Grace Hildebrand. "Q. She is the plaintiff in this action? A. Yes, sir. "Q. Were they living there together in the apartment? "MR. ALYWARD: If you know? "Q. Yes, if you know. You needn't testify to anything you don't know. Were they living there together? A. I suppose they were living there together. *Page 373 "Q. I am asking you for your knowledge. Now, how do you know they were living there together? A. Why, because they were there together. "Q. You saw them there? A. Yes, sir. "Q. How long did they live there together in that apartment? A. Why, I am sure I don't know how long they lived there. "Q. No, I don't expect you to give it accurately, Mrs. Ade, but about how long they lived in those apartments there? A. Several years. "Q. Did anyone live there with them? A. Not that I know of. "Q. Did you visit them there in the apartments? A. Yes, sir. "Q. About how often did you visit them there? A. Just occasionally. "Q. Well, give us an idea about how long it was, once a week or once a month. A. Why, there was for a short time once a week and then occasionally it was longer. Sometimes a month, six weeks, eight weeks we didn't see one another. "Q. During that two or three years that they lived there together in the apartment at Twenty-fifth and Troost did they visit you at your house sometimes? A. Yes, sir. "Q. How often did Mr. Hollinghausen and the plaintiff visit you there at your house during the time they were living at Twenty-fifth and Troost? A. Just as I stated before, just occasionally. "Q. Occasionally? A. Yes, sir. "Q. Once a week or sometimes not so often? A. Yes, sir. "Q. Yes, and they came there and would sometimes have meals? That is, they were entertained at your house. A. Yes, sir. "Q. And sometimes they would entertain you and Mr. Ade at their house? A. Yes, sir. "Q. And you were on good terms with them. A. Yes, sir. . . . *Page 374 "Q. State what your conversation with your brother was on that occasion. A. As I stated, it was after she shot the negro; and it was in the newspapers that my brother was married. "Q. Yes? A. I, the next day or two later, went to him and said, `Brother if you were married why didn't you come and tell me? I am your only sister. Why didn't you tell me you were married? I never knew anything about it.' And my brother said, `Emma I am not married. I am simply defending Grace for fear she may have trouble about the shooting affair.'" We think this testimony was amply sufficient for submission to the jury for their determination, and the demurrer was properly refused. And if the first part of said demurrer was intended to strike at the sufficiency of the petition as not stating facts sufficient to constitute a cause of action against defendants, without setting said petition out further, we think it stated a cause of action and it was good after verdict anyway. [Sec. 2119, R.S. 1909]. A valid marriage may be entered into between parties willing and competent to contract at common-law. [Dyer v. Brannock,66 Mo. 391; State v. Cooper, 103 Mo. 266; State v. Hansbrough,181 Mo. 348; Topper v. Perry, 197 Mo. 531; Plattner v. Plattner,116 Mo. App. 405; Butterfield v. Ennis, 193 Mo. App. 638; 18 R.C.L. 391, par. 12.] The jury has determined this question in favor of plaintiff, and their verdict is binding on us. II. Instruction "G" as originally drawn, so far as is necessary to quote, reads as follows: "If, therefore, you believe and find from the evidence that plaintiff and Carl Hollinghausen were husband and wife, and that defendant Emma Ade was intentionally guilty of suchCausing conduct as was calculated to cause their separationSeparation. and to alienate the affections of the said Carl Hollinghausen, and by reason thereof the defendant did cause the affections *Page 375 of said Carl Hollinghausen to be alienated from plaintiff, and did cause him to separate from and abandon plaintiff," etc. Said instruction as modified omitted that part of the original instruction relating to the defendant being guilty of conduct that was calculated to cause their separation The original instruction manifestly submitted the case on a wrong theory — that of the conduct of the defendant causing the separation between these parties. The case was submitted to the jury solely on the averment in the petition that a reconciliation was wickedly and maliciously prevented between plaintiff and her husband; that he was kept separate and apart from her and communication between them prevented. Where an instruction tenders to the finding of the jury the facts of an issue not in the case it is erroneous and would have been reversible error. [DeDonato v. Morrison, 160 Mo. 581, l.c. 591; Glass v. Gelvin, 80 Mo. 297; Silverthorne v. Summit Lumber Co., 190 Mo. App. 716.] We rule that said instruction was correct as modified and overrule defendant's objection thereto. III. Instruction "B" as originally presented so far as is necessary to quote, reads as follows: "If, therefore, you believe from the evidence that plaintiff and Carl Hollinghausen were husband and wife, and that on or about March 31st, 1917, they quarrelled, and the saidCalculated Carl Hollinghausen separated from plaintiff, and thatto Cause. thereupon defendant, Emma Ade, was intentionally guilty of such conduct as was calculated to prejudice plaintiff's husband against plaintiff and alienate him from her and to prevent a reconciliation between them, and that plaintiff was thereby deprived of the society, companionship, comfort, protection, aid and affection of her husband, your verdict will be for plaintiff." Said paragraph of said instruction, as modified, reads as follows: *Page 376 "It, therefore, you believe from the evidence that plaintiff and Carl Hollinghausen were husband and wife, and that on or about March 31st, 1917, they quarrelled, and the said Carl Hollinghausen separated from plaintiff, and thereafter defendant, Emma Ade, was intentionally guilty of such conduct as was calculated to and actually did," etc. Then the instruction concludes as above. It will be observed that the modified instruction differs from the original in adding the words, actually did, after the words, calculated to. We think the original instruction was erroneous in that it only required the jury to find that the alleged conduct of defendant was merely calculated to cause her husband's alienation and prevent a reconciliation between them, whereas, as modified the jury were required to find that said conduct actually did produce such result. The modified instruction "B" was correct, and we overrule defendant's objection thereto. Instruction "A" and "E" announce correct propositions of law and we, therefore, overrule defendant's objections thereto. IV. The court did not err in refusing to give defendant's instruction number 1, to the effect that there was no evidence of actual malice on the part of defendant toward the plaintiff, and that issue is withdrawn from your consideration. UnderMalice. this record said instruction did not correctly state the law. A correct instruction on the subject of malice was given at the request of plaintiff. We overrule defendant's objection to the refusal of the court to give said instruction. V. Instructions, 2, 3, 4, and 6 were properly overruled. Numbers 2, 3 and 4 related to the proposition asserted by defendant that if the jury found that plaintiff hadEstoppel. made the settlement pleaded in the answer by which she had received $7,500 in full *Page 377 of alimony and all her property rights in her husband's estate, that she was estopped from recovering in this action. This settlement had nothing to do with the instant case, and defendant was not a party to it; there was no mutuality respecting the matter as between plaintiff and defendant. "Mutuality is a necessary ingredient of an estoppel. There can be no estoppel upon one party unless the other party is equally estopped." [Hempstead v. Easton, 33 Mo. 142; City of Unionville v. Martin,95 Mo. App. 28, and authorities cited at l.c. 39; DeFord v. Johnson, 251 Mo. 244.] The court properly refused these instructions. VI. Instruction 5 was properly refused because it sought to submit to the jury an issue not in the case. Instruction 6 tells the jury that plaintiff could not recover damages for injury done to her feelings or the loss ofFeelings. support, comfort and society of her husband and these elements would be withdrawn from the consideration of the jury. These were elements plaintiff could recover for, and, hence, the instruction was properly overruled. Instruction 7 told the jury that if plaintiff caused theseparation between her and her husband and was not wrongfully induced to do so by either of the defendants, their verdict would be for defendants. The cause of their separation, asCaused by above seen, was not an issue of the cause, andPlaintiff. therefore the instruction was properly refused. Instructions 8 and 11 were properly refused. VII. Instruction 10 told the jury that the law presumes thatcounsel or advice given by a sister to brother is given in good faith and from proper motives and honest impluses, the burden of proving that such was not the case was shifted toSister's plaintiff to prove by a preponderance of thePrivilege. testimony that such advice was not given in good faith, and unless the jury find such facts exist to their personal satisfaction they will find for defendant, Emma Ade. *Page 378 We agree with plaintiff that there is no initial presumption of good faith on the part of a brother or a sister who interferes in the marital relations of a plaintiff. This is vastly different from a case of parents interfering between husband and wife. In the case of Barton v. Barton, 119 Mo. App. l.c. 532, it was held: "We are not to be understood as intimating that a parent may, without good cause, influence a child to separate from a spouse; to do so is a tort for which the parent, like any other person, is liable. We mean to say that the law recognizes a superior right of interference on the part of a parent; and will justify the interference for a cause which would be no justification in favor of another person. This rule prevails because of the law's respect for that anxiety parents feel for their children which impels to efforts to promote a child's welfare and happiness. This natural impluse prompts advice and assistance in domestic troubles, as well as in others." We rule that the instruction was properly refused. VIII. It is assigned as error that the court modified and gave instruction 20. Said instruction as originally requested by defendant reads as follows: "The court instructs the jury that in the event your finding is for the plaintiff, you are only permitted to allow damages, if any, for the loss of affection, the society,Duration of companionship, and comfort of the said CarlDamages. Hollinghausen from the 25th day of April to the date of his death, on June 9, 1917." The modified instruction changed the date from when the damages accrued to March 31, 1917, to the date of his death June 9, 1917. There was no error in modifying said instruction, and the assignment is overruled. IX. We rule that defendant's peremptory demurrers were properly overruled. Plaintiff's instructions given to the jury presents the case sufficiently clear for their ready understanding, *Page 379 and when read in connection with the thirteen given at defendant's request, which were quite liberal in her behalf, we think there is no doubt but that the case was properly instructed on. X. Error is assigned in that the court failed to limit certain evidence by instruction which was received for the sole purpose of showing the state of mind, or affection, of the person making the statement. If defendant desired such instruction it was her duty to ask the court to give one. [Ratten v. C.E. Ry. Co.,120 Mo. App. 270; Sotebier v. Transit Co., 203 Mo. l.c. 721; Brown v. Globe Printing Co., 213 Mo. 611-613.] We overrule the assignment. XI. Lastly defendant makes the point that the verdict is grossly excessive and is the result of passion and prejudice. There is nothing in this record that shows the verdict was the result of passion and prejudice, and we cannot hold that it was. As to being grossly excessive both sides citeExcessive the case of Fuller v. Robinson, 230 Mo. 32, to showVerdict. the pro et con of the contention. The citation of authorities on this point usually is only valuable in the particular case in announcing the general rule of this court on the question. But in the instant case, the case cited, supra, appears to have a concrete applicability. We quote from it as follows: "A verdict for $10,000, in a suit for alienation of the affections of plaintiff's wife, is not excessive. There is no scale by which damages can be graduated with certainty in such cases, and the laws commits to the jury the duty of estimating the wrong done to the plaintiff, and with their discretion the court will not interfere except where they have clearly been actuated by unreasoning prejudice." Defendant argues that plaintiff could recover damages only from the date of the separation to the date *Page 380 of the divorce, which she calculates was 43 days. This is erroneous. As shown above, plaintiff requested an instruction to the effect that, if she recovered at all, she could recover until June 9, 1917, the date of the husband's death, and the court modified it making it read from March 31, 1917, the date of the separation, until June 9, 1917, the date of his death. Time is not of the essence of the plaintiff's right to recover; that right rests upon the wrong done her by defendant. She defendant's wicked and malicious efforts to keep plaintiff and her husband apart is abundantly disclosed by the evidence. It shows that the husband immediately came to her home when the separation occurred, and from that day until the date of his death she persistently and successfully kept them apart, so that they could not see each other, although she knew that they were anxious to become reconciled. We overrule the point. From what has been said above it follows that defendant's assignments that the court erred in overruling her motion for new trial and to arrest the judgment were properly overruled. This disposes of all of defendant's assignments adversely to her contentions. This record presents an almost unparalleled instance of wicked, malicious and unlawful interference by defendant in successfully preventing plaintiff and her husband from affecting a reconciliation, and we affirm the judgment. It is so ordered.Railey and White, CC., concur.