Greuneich v. Greuneich ( 1912 )

Bruce, J.

(after stating the facts as above). It will be noticed that in none of the instructions relating to compensatory damages did the court call the attention of the jury to the fact that before damages could be awarded they must find that the defendant acted maliciously, and with the intention to alienate the affections of the husband. It is true that, in his instruction in relation to punitive damages, the court stated that a malicious motive had to be found. This instruction, however, merely served to emphasize and strengthen the belief in the minds of the jury that on the question of compensatory damages no malice was necessary to be proved; and it is, of course, impossible for us to determine from the verdict how much was given as punitive damages, or whether in fact any punitive damages at all, were allowed, or whether the jury found that there was any malice in the conduct of the defendant at all. The instructions, in fact, as counsel for appellant argue in their brief, entirely ignore the right of the defendant, and of a parent, generally, to advise and counsel his son in such matters, provided that he acted in good faith. The law recognizes the natural solicitude of a parent for the happiness and welfare of a child, even after the child has married and left the parental home; and it is well settled in the authorities that if a wife leave her husband, or a husband his wife, and he or she is induced so to do by the advice or counsel of a parent, the parent will not be held liable in an action for alienation of affections, unless it is made to appear that, in giving such advice or counsel, he acted in bad faith, and not honestly to promote the interest and welfare of his child. This is the case, even though the advice was not wisely given. Luick v. Arends, 21 N. D. 614, 132 N. W. 353; Oakman v. Belden, 94 Me. 280, 80 Am. St. Rep. 396, 47 Atl. 553; Brown v. Brown, 124 N. C. 19, 70 Am. St. Rep. 574, 32 S. E. 320; Trumbull v. Trumbull, 71 Neb. 186, 98 N. W. 683, 8 Ann. Cas. 812; Multer v. Knibbs, 193 Mass. 556, 9 L.R.A.(N.S.) 322, 79 N. E. 762, 9 Ann. Cas. 958; Busenbark v. Busenbark, 150 Iowa, 7, 129 N. W. 332. It is true that it has been held by some authorities, and' perhaps is the correct rule, that if a parent relies on the defense of parental advice honestly given, he must plead it, and that this was not done in the case at bar. Rath v. Rath, 2 Neb. (Unof.) 600, 89 N. W. 612; 21 Cyc. 1623. The defense in this case, however, is hardly a defense of parental advice. It is a denial of the fact that the father maliciously alienated the affections of his son from his wife, and induced him to leave her. In the case at bar the complaint alleged malice on the part of the defendant, and it would seem that in such a case it was necessary that malice should have been alleged. Reed v. Reed, 6 Ind. App. 317, 51 Am. St. Rep. 310, 33 N. E. 638. It seems to be the general rule that an intentional alienation must be shown. Warner v. Miller, 17 Abb. N. C. 221; Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397. The acts of the defendant that caused the alleged injury must have been, malicious, and though malice may be implied whenever there is a deliberate intention to do a grievous wrong without legal justification or excuse (Williams v. Williams, 20 Colo. 51, 37 Pac. 614), the existence of such malice or deliberate intention must be found by the jury. An unjustifiable act is not necessarily malicious, and a distinction must be made between the intentional commission of a wrongful act and the doing of a wrongful act through mere error-of judgment. Ibid. The jury in fact may have found from the evidence that the defendant doubted the purity of his son’s wife, and expressed such a doubt in words, without finding that in the expression of such doubt, the father maliciously intended to alienate the affections of his son and bring about a separation; and it is perfectly possible that the verdict of the jury may have been based upon the admission of the defendant that, on the occasion of the wedding, he asked the question as to what would be the name of a child of the plaintiff if it happened that she was pregnant at the time of her marriage, and the facts of the subsequent separation of the parties, without finding that the defendant, in uttering those words, maliciously intended to alienate the affections of his son. As to all of the other words spoken, there is a sharp conflict in the testimony, and we do not know which side the jury believed. There is, in short, a clear distinction between an action for slander or libel and an action for the alienation of affections. The gist of the latter is a malicious intention to alienate; and this fact is nowhere brought to the attention of the jury by the instructions.

The judgment of the District Court is reversed, and a new trial is ordered.