Holst v. Warner

Good, J. Plaintiff brought this action against his mother-in-law, to recover damages for the alienation of his wife’s affections. In a general way he alleged that the acts and conduct of defendant were wilful and malicious and such as to, in fact, alienate the affections of his wife. In her answer defendant admitted the relationship of the parties; denied that she had alienated the affections of plaintiff’s wife or done any act calculated to bring about that result; and alleged that the affections of plaintiff’s wife were alienated by his own misconduct; that plaintiff had no affection for his wife, and for that reason she had lost her affection for him ; that plaintiff had made use of his marital relationship to obtain money and property from defendant, who was in comfortable circumstances; that plaintiff did not properly support his wife; that defendant had done all that she could to make the married life of plaintiff and his wife happy. The reply was in the nature of a general denial. A trial of the issues resulted in a verdict and judgment thereon — 210 — for plaintiff in the sum of $5,000. Defendant has appealed. This cause has been heretofore submitted to and an opinion prepared by the supreme court commission reversing the judgment of the district court, and is now before us upon a motion for rehearing. The assignments of error are numerous and may be summarized as follows: That the court erred in refusing to give instructions Nos. 1 and 2, requested by defendant; erred in giving instructions Nos. 5, 7 and 8, given by the court on its own motion; that the court erred in not directing a verdict for defendant; that the verdict is not supported by the evidence and is excessive. The instructions requested by defendant and refused by the court related to the right of defendant to give parental advice to her daughter and would have informed the jury that, if defendant did give such advice without malice and with intent to benefit her daughter, plaintiff could not recover, even though such advice resulted in the separation of plaintiff and his wife. From an examination of the answer, it is apparent that parental advice, given in good faith, was neither pleaded nor relied upon as a defense, and in her testimony defendant categorically denied giving any advice to her daughter, or that she counseled her in any way with reference to a separation from her husband. The instructions, therefore, were not applicable to the issues or to the evidence given by defendant. It may be observed that, although such issue was not presented by the pleadings, the court did instruct upon the question and gave the defendant the benefit of a defense which she had not pleaded, and which was not supported by her evidence. With respect to the instructions given by the court on its own motion, the record discloses that the only assignment in the motion for a new trial, relating to that subject, is as follows: “That the court erred in giving instructions numbered 1 to 10, inclusive, of its own motion.” It has long been the rule that such an assignment will be considered no further than to ascertain that any one of the instructions — 211 — was properly given. Hiatt v. Kinkaid, 40 Neb. 178; McDonald v. Bowman, 40 Neb. 269; Armann v. Buel, 40 Neb. 803; Mattern v. McCarthy, 73 Neb. 228. We have carefully examined the entire charge, given by the court to the jury, and find no error in any of the instructions, save, possibly, one, wherein it gave to the defendant the benefit of a' defense which she did not plead. Of course, defendant cannot predicate error upon the giving of an instruction more favorable to her than she was entitled to under the law. It follows that this assignment of error is not well taken. The next two assignments may be treated together. It is not practicable to outline all of the great volume of evidence in this case. We will, therefore, summarize some of the more important parts, as disclosed by the record. Plaintiff and defendant both resided in the village of Wausa, Nebraska, and their residences were in close proximity to each other. Plaintiff and his father, as copartners, were engaged in the hardware business. For a little more than a year after the marriage of plaintiff and defendant’s daughter, the young couple appeared to live happily together. They went frequently to places of entertainment, to parties, social functions, moving picture shows, picnics, and, in turn, entertained their friends at their home. Many of the immediate neighbors and friends of plaintiff and his wife were called as witnesses, and they testified to the happy relationship existing between plaintiff and his wife. It appears that something like 14 months after the marriage some feeling arose between plaintiff and his mother-in-law. She came to his home one Sunday morning, according to his testimony, and there upbraided him in the presence of his wife, charging that he had not been properly attentive to his wife; that he did not take her to places of entertainment and amusement and did not treat her as a husband should treat his wife; that he then informed her that he thought they were getting along very well and would get along better if there was no intermeddling. Plaintiff’s testimony tends to show that the defend — 212 — ant immediately departed, slamming ;he door as she went out. On the following day, when plaintiff came home from the store in the evening, his wife was not at home. He searched about the house and premises and did not find her. He went to the home of defendant and inquired if his wife were there, and defendant informed him that she was not and that she did not know where his wife was. A little later plaintiff learned that his wife was and had been at the home of the defendant all the time. He visited with her there and finally, some 10 days later, secured her consent to return to his home. Plaintiff’s testiifiony tends to show that, at the time, defendant stated that, if her daughter went home to her husband, she would do so against defendant’s wish and without her consent. Plaintiff’s wife did return to him and they lived together for several months thereafter. It also appears from the record that some months after the marriage plaintiff borrowed from defendant $600 and' evidenced the loan by his promissory note, payable to her and bearing 10 per cent, interest from its date. On one occasion, a little more than two years after the marriage, defendant called at plaintiff’s place of business, when a number of customers were in the store, and there she again upbraided him, in the presence of others, for not properly treating his wife and for not taking her to places of amusement and entertainment, and told him that she would not stand such treatment from him or anyone like him, and demanded payment of his note. Defendant’s testimony tends to show that at the time all she was asking was for the interest. Plaintiff’s testimony shows that, at that time, the interest and one-fourth of the principal had been paid. A short time later the remainder of the principal was paid. On the above occasion, as defendant was leaving the store, the evidence tends to show, she remarked, in substance: “You’d better do what I tell you or you will lose your happy home.” Plaintiff’s testimony tends to show that, for some months prior to the final separation of plaintiff and his wife, defendant would not speak to him when she met him; did not go. to — 213 — his home when he was there, but frequently visited his home when he was at his place of business; and that, as he would be returning to his home, he would observe the defendant leaving by a side or back door, going across the yard to her own home; that on such occasions he would find his wife silent and moody, which would be her mood only after her mother’s visits; that, when he inquired the cause, she would state that there was no trouble. The evidence further shows that a few weeks later plaintiff’s wife commenced an action for divorce; that defendant and her daughter went together to the county seat to consult a lawyer, following which the action was instituted; that for a week or two prior to the commencement of the divorce action, without plaintiff’s knowledge, his household goods and furnishings were moved from plaintiff’s home to the home of defendant; that defendant participated in such removal and helped to carry away the household goods. The evidence tends to show that defendant employed men to help carry the furniture from plaintiff’s to her home, and actively assisted in such removal; that the action for divorce was tried, and the evidence also shows that plaintiff and his wife are still undivorced, from which it must be inferred that the trial of the divorce action resulted favorably to the husband; plaintiff in this action. While being cross-examined as a witness, defendant gave the following testimony: “Q. You remember the time you were in the store and asked Arthur (plaintiff) for the payment of this note, do you? A. I do. Q. You say that you never made a statement that, if he wasn’t careful, he was going to lose his happy home? A. I didn’t say that. Q. You heard his father testify to that and you heard him testify to that? A. I didn’t say it. Q. What did you say when you went out of that store and passed his father? A. I didn’t say anything like that. I don’t know what I said. I knew it would be the breaking up of my daughter’s home. Q. That is what you have been trying to do continuously? A. Yes; I have.” This testimony was not qualified or explained by defendant. — 214 — It is true that the evidence upon many of the points is in hopeless conflict. It is perfectly clear from the record that for a year or more plaintiff and his wife lived together happily, without any trouble or difficulty; that they are now separated and the home broken up. Whether the home was broken up by plaintiff’s misconduct, as claimed by defendant, or by defendant’s misconduct, as claimed by plaintiff, was a question peculiarly for the jury. It may be further observed that in some respects the defendant’s testimony was contradicted on material points by her own witnesses; also that six of her neighbors, who had known her for many years and who lived in the vicinity, were called, and they testified that her reputation in the community for truth and veracity was not good. No witness was called to sustain her reputation in this respect. Under all the circumstances, we cannot say that the jury were not warranted in disregarding her testimony or giving it but little weight. There is sufficient competent evidence to require the submission of the case to the jury. Their finding upon a disputed question of fact is conclusive upon this court. It is urged that the verdict is excessive, and that no witness has testified as to the amount of pecuniary damages that plaintiff has sustained by losing the affections of his wife. We think it is the rule in cases of this class that it is unnecessary, and it would be improper, for any witness to testify as to the amount of damage which plaintiff has sustained. Plaintiff and his wife were under 30 years of age. • Until his marital affairs were interfered with by defendant, he had prospects of many years of happy married life. Now he and his wife are separated and estranged, and his life embittered. The amount of damages which should be awarded under the circumstances is left to the sound discretion of the jury, which they must determine from all the facts and circumstances proved. We are not warranted in saying that $5,000 is more than a fair pecuniary award for the injury which plaintiff has suffered. In a case quite — 215 — similar to the instant case, this court sustained a recovery of $10,000. Stocker v. Stocker, 112 Neb. 565. No error prejudicial to defendant has been pointed out. It follows that the judgment heretofore entered in this court should be and is vacated and set aside, and the judgment of the district court is Affirmed.