Claxton v. Pool

OPINION. FARRINGTON, J. We will first discuss the peremptory instruction offered by defendant Mrs. Pool, ' then the instructions complained of, as under the view we take of the case this will dispose of the appeal so far as Mrs. Pool is concerned, and lastly we will consider the question.of the liability of defendant L. D. Pooh — 24 — In considering this case it will be well to bear in Liability of mind some of the well established general Mrs. Pool. principles of law relating to this question. As against the defendant Mrs. L. D. Pool, the petition is good, following, as it does, approved forms. [Nichols v. Nichols, 134 Mo. 187, 35 S. W. 577; Nichols v. Nichols, 147 Mo. 387, 48 S. W. 947; Cornelius v. Cornelius, 233 Mo. 1, 135 S. W. 65.] In this State, since the decision of the case of Clow v. Chapman, 125 Mo. 101, 28 S. W. 328, the wife may maintain an action against third persons for enticing away her husband and alienating his affections for her, ‘just as the husband could maintain such an action at common law. [Nichols v. Nichols, 134 Mo. l. c. 192, 35 S. W. 577; Nichols v. Nichols, 147 Mo. l. c. 400, 48 S. W. 947; DeFord v Johnson, 251 Mo. 244, 158 S. W. 28; Gambino v. Manufacturers’ Coal & Coke Co. (Mo. App.), 158 S. W. 77.] The argument is advanced in behalf of Mrs. Pool that even though there existed undue intimacy between herself and plaintiff’s husband and even though this amounted to illicit sexual intercourse, still no case is made out showing that she was the enticing and producing cause of the alienation and separation, and that the evidence shows that plaintiff’s husband alienated his own affections for plaintiff and that Mrs. Pool’s acts were at most only passive in their nature. We fully recognize the rule laid down in 3 Elliott on Evidence, sec. 1643, which is as follows: “To entitle the plaintiff to recover in an action for alienating affections, the burden of proof is upon the plaintiff, and the plaintiff must show that there was a direct interference upon the part of the defendant that not only was there infatuation of the husband or wife for the defendant, but that the defendant by wrongful act was the cause of it.” That rule was quoted with approval in the case of DeFord v. Johnson, 152 Mo. App. l. c. 214, 215, 133 S. W. 393. — 25 — It is also good law in this State and elsewhere that to sustain the action there must be evidence that the party charged is the enticer, and this requires more than a mere showing of the abandonment and improper relations. [DeFord v. Johnson, supra; Scott v. O’Brien (Ky.), 110 S. W. 260; Buchanan v. Foster, 48 N. Y. Supp. 732; Waldron v. Waldron, 45 Fed. 315.] There must be proof of direct interference sufficient to satisfy the jury that the wrong was caused by the defendant. [15 Am. & Eng. Ency. Law, 865, 866; 21 Cyc. 1621, note.] In the case of Waldron v. Waldron, 45 Fed. l. c. 321, we find this language which we think pertinent to the point under consideration: “We know, as a matter of common knowledge and observation, that, as a general rule, men woo and women are wooed and won; that men seduce and allure and lead women from the path of virtue, and that women are allured, seduced and led astray; but we also know, from common observation, that this general rule does not always hold, and that sometimes women woo men; that sometimes women allure, seduce, and debauch men; that women upon occasion, induce, allure, seduce, and persuade men to abandon and desert their wives, and form new relations, lawful or unlawful. It will be for the jury to say, from all the evidence, what were the facts in this ease, and whether the issue stands proved or unproved. ’ ’ Plaintiff’s evidence tended to show that she and her husband lived together some ten or twelve years and that they were rearing a family and that they got along without much discord; that some year’ or more before the separation plaintiff noticed a coolness toward her on the part of her husband. In July, 1911, she heard that there was gossip about him visiting Mrs. Pool’s millinery shop and she advised Mr. and Mrs. Pool of this town talk and requested that they have Claxton stop his visits there. Nevertheless, the visits continued the same as before, and they — 26 — were, almost daily. Plaintiff’s evidence shows that her husband was seen late one evening with Mrs. Pool in a position which was changed as soon as the witness’ presence was ascertained, whereupon Mrs. Pool stated that Claxton was making out an order for some goods, it further appearing in evidence that Mrs. Pool was unable to read or write with any efficiency. It is shown that, on one occasion Mrs. Pool rode in the same seat with Claxton when she knew the plaintiff had protested and wished to occupy that place herself; that at another time, when Claxton and his wife met Pool and his wife taking a walk, Claxton was asked to come and walk with the Pools and let Mrs. Claxton go on with others, which he did; that'Mrs. Pool called for him and talked with him over' the telephone when he was at Ms home; that on one occasion when plaintiff’s husband was going away, Mrs. Pool told plaintiff that he would not have called her up to tell her of his departure had not she (Mrs. Pool) told Mm to do so. This condition of affairs continued, with the plaintiff making protests and Mrs. Pool knowing that plaintiff was suspicious and desirous that her husband cease paying visits to the millinery shop, and finally the granary incident occurred, which, according to the testimony of plaintiff and her corroborating witnesses, savors strongly of immoral conduct, after which, within a day or two (on April. 10, 1912) the separation took place.- Plaintiff’s evidence further shows that after this the plaintiff’s husband was seen with Mrs. Pool, and that after leaving Hartville, Claxton sent her a letter which .had been written to him by his wife. Plaintiff’s evidence further showed that on one occasion when Claxton was passing Mrs. Pool’s millinery shop' a note was dropped on the sidewalk which he picked up and read and then went into her shop. Also, that defendant Mrs. Pool remarked after the separation of plaintiff and Claxton that when plaintiff — 27 — would acknowledge she did her a wrong, she (Mrs. Pool) would kelp bring about a reconciliation. Defendants’ evidence tended to establish a denial and explanation of the above detailed circumstances and that the relation amounted to nothing more than right acting. The jury drew inferences sustaining plaintiff’s contention. That the jury could reasonably infer, from the evidence that the relation existing between plaintiff’s husband and Mrs. Pool brought about, an alienation of Claxton’s affections for his wife and the subsequent separation, no one will contend, and that such relation, if it did exist, was induced by some one cannot be denied; it was for the triers of the fact to say from all the evidence and conditions presented to them who was the enticing party, and having done so, their decision must settle that fact in this court. The jury has a right to reason from effect to cause. [Cornelius v. Cornelius, 233 Mo. 1, 135 S. W. 65.] They had before them the final separation, the evidence of circumstances pointing to immoral conduct, and the constant visits paid Mrs. Pool covering a long period of time. Her knowledge that such attention as Claxton was paying was against the plaintiff’s wishes, with no protest or attempted protest on Mrs. Pool’s part, is also shown. It may be said'that no one fact taken by itself will justify the verdict, yet all considered together do. Evidence in a case touching the issue here involved must of necessity be largely circumstantial. It may be likened to the coming of a fog: You cannot point to the exact place whence it comes or know the exact moment it arrives, yet in the course of time no one doubts its presence and envelopment. Were there any doubt concerning the question here, it would be removed upon reading the case of Linck v. Vorhauer, 104 Mo. App. 368, 79 S. W. 478, where, on a state of facts of much less probative force than those with which we are dealing the court upheld a verdict to the effect that the woman was the enticer and in — 28 — ducer, and the brief of appellant in that case shows that the point contended for here on Mrs. Pool’s peremptory instruction was there pressed upon the court. It follows from what has been said that the trial court in the case at bar properly overruled the peremptory instruction requested by defendant Mrs. Pool. The instructions, Instructions 1 and 2 given for the plaintiff, insofar as they relate to the defendant Mrs. Pool, are not subject to the criticism of appellants’ counsel. They are almost word for word copies of instructions 1 and 3 given'and approved in the case of Modisett v. McPike, 74 Mo. 636. Plaintiff’s instruction 3 finds authority to support it in DeFord v. Johnson, 152 Mo. App. 209, 133 S. W. 393; Barton v. Barton, 119 Mo. App. l. c. 531, 94 S. W. 574; Cornelius v. Cornelius, supra; Nichols v. Nichols, supra. The instruction is as follows: “The court instructs the jury that in order to maintain this action, it is not necessary that plaintiff prove by the evidence that she had at any time the love and affection of her husband. That under the law a stranger has no right to voluntarily and unasked interfere with and disturb the concord and unity of the domestic relation or to interfere and by any chance cut off or prevent the possibility of a future affection springing up between two spouses. That the plaintiff had the right to ‘seek the comfort, companionship, protection and aid of her husband without the interference of any outside person and although the jury may believe from the evidence in this cause that the home life of plaintiff and her husband was unpleasant, nevertheless this would not justify defendant Mrs. L. D. Pool in voluntarily intermeddling with plaintiff’s domestic affairs, if she did so intermeddle, and if the jury believe from the evidence that plaintiff’s husband still would have lived and remained with her if it had not been for the wrongful acts, conduct and influence of defendant Mrs. L. D. Pool, if any, and that — 29 — he was induced to separate and remain apart from plaintiff by the intentional wrongful acts, conduct and influence of defendant Mrs. L. D. Pool and that said acts, conduct and influence was naturally calculated to cause such separation, then your verdict will be for plaintiff and against Mrs. L. D. Pool.” We have written in italics the words “by any chance cut off.” This part of the instruction, standing alone, is subject to criticism. It should have been written ‘ ‘ cut off any chance. ’ ’ However, the remainder of the same instruction shows plainly that the jury was to find that wrongful and intentional acts, conduct, influence, etc., prevented a reconciliation. The instruction itself cured the error. Instruction 7 given by the court of its own motion clearly defined the elements necessary to be found, and covered the case so far as Mrs. Pool was concerned. It is as follows: “Before you can find the issues for plaintiff against defendant Mrs. L. D. Pool you must believe and find from the evidence that she intentionally influenced the husband of the plaintiff to withdraw his affections from plaintiff and desert her. It is not enough for plaintiff to show merely that defendant Mrs. L. D. Pool was friendly with the husband of plaintiff, knowing at the time that he and the plaintiff- were having discord in their marital relations, nor is it sufficient that you should believe merely that defendant’s conduct in her association with plaintiff’s husband amounted to impropriety or was even of a scandalous nature, but before you can find for plaintiff, it must be shown by the evidence that defendant Mrs. L. D. Pool’s conduct, in her association with the husband of plaintiff, was improper and wrongful and further that Mrs. L. D. Pool intended by such conduct to cause plaintiff’s husband to withdraw his affections from her or desert her, and in addition to this, it must be shown by the evidence that such conduct on the part — 30 — of defendant Mrs. R. D. Pool did in fact cause the husband of plaintiff to withdraw his affections from plaintiff or desert her. If plaintiff has failed to prove any one of these alleged facts by the greater weight of the evidence, it will be your duty to find the issues for defendant Mrs. R. D. Pool.” All phases of the case were covered by the instructions given, which makes it unnecessary to review the assigned errors in the court’s refusal to give other instructions offered by the defendant Mrs. R. D. Pool. Exceptions to Evidence, As to the assignments concerning the admission and exclusion of testimony, in several instances we find that proper exceptions were not saved, and in none of these rulings was reversible error committed. The Jury Question. Just preceding a former term of the circuit court when Mrs. Pool thought this case would be tried, she sent a list of names to one of the members of the county court (there is no evidence that defendant R. D. Pool knew of this list until after it was sent) — names of men she thought would be fair jurors. The list was not used by the judge of the county court. At the next succeeding term of the circuit court when this case was tried, the fact developed that two members of the trial jury were men whose names appeared on the list which Mrs. Pool had sent to the judge of the county court. This fact came out in evidence. Mrs. Pool now claims she is entitled to a new trial on that account because such two jurors could not' have been fair to her. She certainly was responsible for the condition brought about and cannot now complain of the trial court’s exercise of discretion in refusing to .grant a new trial on that ground. It follows that the judgment is amply sustained both in law and fact as to defendant Mrs. R. D. Pool. Liability of L. d. Pool, In considering the liability of the husband, R. D. Pool, it will be well to observe that the petition does not charge him as a joint — 31 — tort-feasor with his wife, alleging only that what his wife did he had knowledge of and gave his consent to. To charge that he was a joint tort-feasor would require that he not only had knowledge and gave consent, but that he encouraged,, aided or abetted his wife in her wrong or that he obtained some benefit from her acts which he ratified. [State v. Cos, 65 Mo. l. c. 33; 38 Cyc. 485, 486; Wamsganz v. Wolfi, 86 Mo. App. l. c. 215, 216; Leavell v. Leavell, 114 Mo. App. 24, 89 S. W. 55; Brannock v. Bouldin, 26 N. C. 61.] Indeed, counsel for respondent in their brief assert positively there is nothing in the case which would hold L. £>.. Pool as a joint tort-feasor. He is charged and the proof goes no farther than to show that the plaintiff’s husband was unduly friendly with Mrs. Pool and that she was having immoral and improper relations with him. If Pool’s refusal to believe the gossip, and his constant belief in the fidelity of his wife, can be construed into a consent to. her wrongful conduct, — then he. consented. We find no fact or circumstance, however, in this record from which it can reasonably be inferred that L. D. P'ool did anything, himself or had his wife do anything by his direction, or that there was anything that resulted in benefit to him, by which to hold him as a joint tort-feasor. If he is liable at all, it can only be on the common-law liability of a husband for his wife’s torts, and this is the theory pressed for affirmance as to appellant L. D. Pool by respondent’s counsel. It is doubtful what theory the trial court had in mind in submitting the question of Pool’s liability to the jury. Instructions 1 and 8 only permitted a recovery against him predicated on his being a joint tortfeasor in that the jury must find that he knew of, encouraged, and advised his wife in her wrongful acts, while instruction 2 permitted a recovery against him “if from all the evidence the jury believe that defendant Mrs. L. D. Pool with the knowledge and approval — 32 — or encouragement of L. D. Pool intentionally per' suaded, influenced or induced plaintiff’s husband to separate and remain apart from her.” Respondent, if she be correct in her contention that the husband is responsible on the facts of this case merely by reason of the marital relation on the common-law doctrine of liability of the husband for his wife’s torts, is correct in her further contention that if the court put a greater burden on her than the law imposed (by requiring the jury to find that the husband was a joint 'tort-feasor) the appellants are in no position to obtain a reversal of the judgment because the error committed was in their favor. [Seawell v. Railroad, 119 Mo. 222, 24 S. W. 1002; Foster v. Railway Co., 115 Mo. 165, 21 S. W. 916.] As a general proposition of law it is settled in this State that the husband is liable for the torts of his wife, and that the Married Women’s Acts emancipating her so far as her property rights and the right to sue and be sued are concerned do not by express language or implication relieve the husband of his common-law liability for her torts. [Taylor v. Pullen, 152 Mo. 434, 53 S. W. 1086; Flesh v. Lindsay, 115 Mo. 1, 21 S. W. 907; Nichols v. Nichols, 134 Mo. 187, 35 S. W. 577; Nichols v. Nichols, 147 Mo. 387, 48 S. W. 947; Bruce v. Bombeck, 79 Mo. App. 231; Clow v. Chapman, 125 Mo. 101, 28 S. W. 328; Love v. Love, 98 Mo. App. 562, 73 S. W. 255; Leavell v. Leavell, 114 Mo. App. 24, 89 S. W. 55.] In the opinion in the case of Bruce v. Bombeck, supra, l. c. 235, five instances are given where the husband is liable for his wife’s torts, namely: ££ (1) If the tort is committed in the husband’s presence, and nothing more appears, it is his sole tort, as the wife is presumed to have acted under his coercion. (2) If the tort is committed in his presence, but she appears to have acted deliberately and freely, it is their joint ¡tort. (3) If the tort-is committed in his presence and- — 33 — against Ms will, it is her tort, and he is liable with her. (4) If the tort is committed ont of his presence, but by his direction, she is jointly liable with him. (5) If the tort is committed ont of his presence and without Ms knowledge or consent, he is liable with her. [9 Am. & Eng. Ency. of Law, p. 823, and cases cited.] ” It will be noted that none of the instances there set ont correspond with the situation here, because the evidence shows that the wrongs committed, if at all, were not in the presence of the husband sought to be held, yet the charge is that they were committed with Ms knowledge and consent. The substantial evidence of wrongful conduct on the part of plaintiff’s husband and Pool’s wife is that concerning the frequent visits to Mrs. Pool’s shop, the questionable conduct therein, and the evidence of immoral conduct at the granary. At no time was the husband of Mrs. Pool present when these relations were going on and there is no evidence that he ever had any more than a knowledge that there was gossip around town that plaintiff’s husband went to the millinery shop too often from which certain persons drew the conclusion that there were improper relations existing. It is true, he remarked that “people will talk anyway,” and that he did not, as he might have done, fly into a rage about it. Yet his course, may be easily accounted for in that all the evidence shows that he had implicit' faith in his wife’s fidelity. Must he be condemned and mulct in damages because •he placed that faith in his wife that is commendable in a husband, and because, forsooth, he did not believe the town gossip concerning her! In all the cases we have examined where the husband is held liable for his wife’s tort, the wrong committed by her was not one that was at the same time an equal or greater wrong to her husband. Here the jury has found that defendant Pool’s wife by a course — 34 — of wrongful and immoral conduct has damaged the plaintiff, which conduct, if it occurred, breached a higher duty owing by the defendant wife to her husband than any she owed the plaintiff. If, by her relations with the plaintiff’s husband, she wronged and injured the plaintiff, much greater was her wrong and injury to her own confiding husband. We have been cited to no case in America or England where the husband is held liable for the tort of his wife growing out of a course of conduct which inflicted a wrong on him condemned by natural, moral and municipal law alike, and we are confident that none exists. We are therefore not bound by precedent or controlling authority. Admitting that the extent to which the doctrine that a husband is liable for his wife’s torts is based on some good reasons, we are not willing to extend its bounds here, where to do so would shock the sense of justice. The maxim that governed the courts in centuries gone by applies with equal force today — “The law never works an injury, or does a wrong.” [Jenk. Cent., 22.] Such a case could only have arisen in comparatively recent times as it has only been since the Married Women’s Acts have been passed that the injured wife could sue at all for wrongs done her. In the ease of Leavell v. Leavell, 114 Mo. App. 24, 89 S. W. 55, which undertook to hold the husband and wife as joint tortfeasors, we find the following language (l. c. 31, 32): “If Mrs. Leavell did not wrongfully influence Garfield to abandon plaintiff, then the verdict and' judgment should not have been again'st her. Or, if Mr. Leavell did not so influence Garfield, but his wife did by acts out of the presence of Mr. Leavell, then the verdict should have been against her and not him.” Had the learned judge in that case thought the husband responsible on the marital relation for the wife’s tort he would have treated the joint tort-feasor theory as — 35 — surplusage, and would not have used the words above quoted: ‘ ‘ Or, if Mr. Leavell did not so influence Garfield, but his .wife did by acts out of the presence of Mr. Leavell, then the verdict should have been against her and not him.” We are not entirely without precedent so far as the principle we are applying here for the first time on the question of liability for tort. The common law of England held the husband responsible for the wife’s ante and postnuptial contracts, and this for the same reasons that he was held liable for her torts during coverture. Yet we find that where a husband went out of the realm of England leaving his wife and children with a sufficient fund for their maintenance and on his return found that she had formed an adulterous connection with ^another man and had contracted debts of necessity for his children in his absence, he was not liable for those debts, it being held that her conduct in living in a state of adultery divested her of the authority arising out of the marital relation. [See, Atkyns v. Pearce, 89 E. C. L. 762.] Nor was a man liable to the penalty for neglecting and refusing to maintain his wife who had left him and committed adultery. [See, The King v. Flintan, 20 E. C. L. 464.] We therefore hold, on principle, that a husband is not liable and has never been held liable' at common law for the wrongs of his wife to a third person by reason of her conduct where such conduct is also a violation of her marital duties to him. Defendant L. D. Pool’s instruction 15 correctly declared the law and should have been given if the evidence had justified the charge that L. D. Pool was a joint tort-feasor. In conclusion, we feel that a few remarks on the general state of the law relative to the’liability of the husband for the torts of his wife may not be out of place. It has not been necessary for us, as has been shown, to do violence to any controlling decisions in — 36 — this State on this question. The Supreme Court has ruled that it will require an act of thé Legislature to remove the liability from the husband. We therefore feel that such an act, which might be termed an act emancipating the husband from all liability on account of the marital relation for the torts of his wife, would meet with favor. The law has already emancipated the person and private rights of the married woman, and her status as a citizen has through education and religion been by common consent raised up to, if not higher than,' that of her brother man. With this condition prevailing, certainly no reason now exists for adhering to the rule which has been termed a “barbarous common-law fiction.” [See, Clow v. Chapman, 125 Mo. l. c. 105, 28 S. W. 328.] We believe that such an act would be welcomed, recognizing that the reasons for the rule once necessary in a. barbarous state of society do not exist in Missouri, and that the husband be no longer liable for any of the torts of his wife merely by reason of the marital relation. It follows from what has been said that the judgment is affirmed as to defendant Mrs. L. D. Pool and reversed as to defendant L. D. Pool. Sturgis, J., concurs. Robertson, P. J., dissents in a separate opinion and asks that this cause be certified to the Supreme Court for the reason that he deems the foregoing opinion contrary to previous decisions of the Supreme Court, and it is so ordered.