Sivley v. Sivley , 96 Miss. 137 ( 1909 )

WilliamsoN,^* Special Judge,

delivered the opinion of the •court.

After a careful and painstaking study of the record of this ■cause, the same having been taken by the court for the purpose •of examining the record with reference to any errors that might have occurred on the trial in the lower court, and keeping in view the fact that the appellee has filed a confession of error, the court is forced to the conclusion that there is error in the record; only one or two of the many assignments of error being necessary to consider in order to show why the court must reverse the judgment and remand this cause.

The suit was brought by the plaintiff in the lower court for the purpose of obtaining damages against the mother of her husband, and it is charged in the declaration that the defendant in the lower court had alienated her husband’s affections and persuaded him to desert her, alleging that she and W. Baker 'Sivley, Jr., were married, and returned to Newton, their former home, after taking a trip to Mobile, and that the defendant, Mrs. Martha Sivley, came to Newton and was there waiting for them on their return, and began at once to alienate and destroy her son’s affection for the plaintiff; and the declaration, among other things, distinctly charges that defendant persuaded plaintiff’s husband to take a trip with her to Louisiana, and afterward to take trips to Jackson, and at another time to take a trip to North Carolina, charging that all of these trips were taken by the defendant, Mrs. Sivley, the mother of her husband, for the purpose of alienating-his affections from her, the plaintiff, and to induce him to leave his wife. This is the gravamen of the declaration, and much proof was taken on all these facts that are charged in the declaration, and there is much conflict in the evidence. But plaintiff having charged in the declaration that the trip to Louisiana was taken for the purpose of persuading her husband to leave plaintiff, the defendant, Mrs. Martha Sivley, testified that it was not taken for the purpose of persuading her son to leave his wife, but that it was to reconcile his father to the marriage, and, if possible, make some arrangement by which W. Baker Sivley, Jr., could support his wife; and it was shown that the father did become reconciled, and that he offered to build a house on the plantation near a little village, and allow his son a salary on which he and his wife could live, if the son would go over and assist in the management of the plantation. There is nothing 'to dispute the fact that this proposition was made to W. Baker Sivley, Jr., and that he took it under consideration, and that the next morning he declined it. When Mr. Eldridge was on the stand, testifying ¿s to these facts (Mr. Eldridge being a disinterested witness), there Was an objection made to the admission of - his testimony by attorneys for the plaintiff, and the court, in ruling on this objection and admitting the testimony for the consideration of the jury, made this comment: “Let it in. It has nothing to do with the case. It did not amount to anything, and did not have anything to do with the issue in this cause.” If the ■evidence was competent, it ought to have been admitted by the •court without comment as to its weight, or what weight it should have with the jury. We think this was reversible error, in view of the fact that the testimony was admitted, and was competent on the very main issue in the case.

We think, further, that this judgment would have to be reversed because excessive, and the amount shows that the jury was controlled by passion and prejudice. The testimony in the cause shows that Mrs. Martha Sivley’s property was worth about $28,000, and it was stated by her on the stand that she would not take that for her property. The jury very promptly brought in a verdict for $30,000, thereby evincing the purpose to add to whatever actual damages they might have allowed the plaintiff a fine that would sweep away defendant’s whole fortune and leave her penniless so, far as her individual property was concerned. We do not feel that we could permit a verdict of that amount to stand in this cause, and for that reason the ■court would reverse the judgment, if for no other error in the record.

After reaching this conclusion, it is useless to discuss the other assignments of error, although the court has carefully looked into all of them, and carefully studied all the evidence in the case, and read all of the authorities cited in the briefs.

Nor the above reasons, the judgment is reversed and the cause remanded. Reversed.

* Whitfield, C. J., being related to a party in interest, recused himself and C. M. Williamsox, Esq., a member of the supreme court bar was appointed a special judge and presided in his place.