McRae v. Robinson , 145 Miss. 191 ( 1926 )

^* Corpus Juris-Cyc. References: Evidence, 22CJ, p. 199, n. 36; Husband and Wife, 30CJ, p. 1122, n. 41; p. 1229, n. 41; p. 1135, n. 26; p. 1136, n. 38, 46; p. 1143, n. 24; p. 1147, n. 87, 89, 89 New; p. 1148, n. 96. On liability of parent for causing separation of husband and wife, see annotation in 9 L.R.A. (N.S.) 324; 46 L.R.A. (N.S.) 469; 13 R.C.L. 1471; 3 R.C.L. Supp. 150. The appellee, Rayburn Robinson, instituted this suit in the circuit court of the Second district of Jones county against Mrs. Daisy Keeton, her son, Earl Keeton, her single daughter, Ouida Keeton, her married daughter, Mrs. Maud McRae, her son-in-law, David F. McRae, and W.M. Carter, Miss Ouida Keeton's employer. The declaration was in two counts; the first count being for the alienation of the affections of appellee's wife, who was a minor daughter of Mrs. Daisy Keeton, and the second count being for false arrest. In each of these counts, it is charged that all the defendants conspired together, first, to alienate the affections of appellee's wife; and, second, to procure his arrest falsely.

Briefly stated, the record discloses the following facts:

On September 28, 1925, the appellee met Eloise Keeton, the eighteen year-old daughter of the appellant Mrs. Daisy Keeton, a widow, and induced her to marry him. Eloise had met the appellee at a street show some two years before that time, and thereafter, without the knowledge of her mother, had carried on a courtship with him. The appellee never visited Mrs. Keeton's home, and was unknown to her. During this courtship many letters passed between the appellee and Eloise, but these letters were not mailed to her direct, but were sent under cover to school girl friends, who delivered them.

The marriage ceremony was performed at Ellisville, Miss., and the couple shortly thereafter left for Chicago via Birmingham and Chattanooga. Mrs. Keeton learned of the marriage some time in the forenoon of the same day, and started an investigation at once to learn the facts, particularly to ascertain to whom her daughter was married. She first communicated the information she had received of her daughter's marriage to another daughter, Ouida Keeton, who was employed as stenographer and bookkeeper for the defendant W.M. Carter. Miss Ouida Keeton immediately telephoned to officers and the license clerks of surrounding counties, seeking information in regard to the runaway couple, and also requested her employer, W.M. Carter, to go to Ellisville and make inquiry in regard thereto. Mr. Carter immediately drove to Ellisville, and examined the marriage records. Upon discovering that these parties were already married, he returned to Laurel.

Upon receiving information of the elopement, Mrs. Keeton had her son Earl Keeton, one of the defendants, drive her to the sheriff's office, and, accompanied by the sheriff of the county, they drove to Ellisville for the purpose of making an investigation. There they interviewed the officers, including the justice of the peace who performed the marriage ceremony, and there learned that Eloise was married to the appellee. Later in the day, Mrs. Keeton learned that they had purchased a ticket and boarded a train for Chicago. In the late afternoon, after he had finished his work for the day, David F. McRae, a son-in-law of Mrs. Keeton, went to her house to inquire in regard to the marriage, and, at the request of Mrs. Keeton, he then drove her to the office of the chief of police of the city of Laurel. There an interview occurred between Mrs. Keeton and the chief of police, in which it was decided to send a telegram to Birmingham for the purpose of intercepting the couple at that point. David McRae took no part in this conference until they were ready to prepare this telegram, when he was called upon by the chief of police to write the telegram. This he did under the directions of the chief of police, supplying some of the points of description of the girl involved. This telegram was directed to the chief of police of Birmingham, Ala., and requested a search of an A.S.G. train for the appellee and the young lady, gave a description of the parties, and stated that the appellee was "charged with perjury and married girl under age. Bought tickets Ellisville for Chicago." David McRae then accompanied Mrs. Keeton to the telegraph office, where the telegram delivered for transmission.

Upon learning later in the evening that the couple had not been intercepted at Birmingham, Mrs. Keeton directed that the same telegram be forwarded to Chattanooga, Tenn., and about 11:30 that night she was notified that the couple had been intercepted and detained at Chattanooga. She left on the first train for Chattanooga and arrived there during the following day. When the runaway couple reached Chattanooga, they were taken from the train by the officers, and carried to the police station, where they were kept under surveillance until the arrival of Mrs. Keeton. Upon the arrival of Mrs. Keeton at the police station in Chattanooga, there ensued a rather stormy interview between these parties, the details of which are unnecessary to be here stated, but which resulted in Eloise informing her husband that she was going to return to Laurel with her mother. After Mrs. Keeton and Eloise had departed for Laurel, the appellee was released from custody, and proceeded to Chicago. Two or three days later he returned to Laurel and sought an interview with his wife. He was unsuccessful in this, and thereupon he instituted habeas corpus proceedings for possession of his wife. The record is silent as to the result of this proceeding, but it is shown that, at this hearing, the appellee and his counsel had a private interview with the then Mrs. Robinson, and on October 6th, or the eighth day after the marriage, the appellee filed this suit, which resulted in a verdict for nine thousand five hundred dollars against Mrs. Keeton, her son Earl Keeton, and her son-in-law, David F. McRae, from which judgment this appeal is prosecuted. The court below granted a peremptory instruction in favor of all the defendants, on the second count of the declaration, which was based upon an alleged false arrest, and there is no appeal from this action of the court. A peremptory instruction to find for the defendants Mrs. Maud McRae, Miss Ouida Keeton, and W.M. Carter, on both counts, was granted. The appellee concedes the correctness of this instruction as to Mrs. Maud McRae, but has prosecuted a cross-appeal as to Miss Ouida Keeton and W.M. Carter.

Conceding that this cross-appeal has been properly taken, and that the question is properly before us for decision, we think the action of the court below in granting a general peremptory charge in favor of Miss Ouida Keeton and W.M. Carter is manifestly correct. As to W.M. Carter, there is no testimony which even suggests his participation in the alleged conspiracy, and while conceding that Miss Ouida Keeton manifested a sisterly interest in the welfare of her younger sister, we do not think there is any testimony which would warrant the inference that she was in any way a party to a conspiracy to alienate the affections of her sister for her husband, the appellee.

On the direct appeal, Earl Keeton and David McRae assign as error the refusal of the court to grant a general peremptory instruction in their favor, and we think the refusal of those instructions was error. Without here detailing the testimony upon which liability is claimed against these two defendants, but after a careful and repeated consideration of each item thereof, including the fact that on the day following the marriage and the arrest and detention of these parties in Chattanooga, and while Mrs. Keeton was in Chattanooga, Earl Keeton made an affidavit against the appellee, attempting to charge him with perjury, we think these instructions should have been granted.

There remains to be considered the assignments of error applicable to the liability of Mrs. Keeton, and, in her behalf, it is strongly urged that the testimony fails to show that she did anything to alienate the affections of the appellee's wife, and that the peremptory instruction requested by her should have been granted. With this contention, we cannot agree. Under all the testimony, it was a question for the jury to say, under proper instructions, whether Mrs. Keeton's words, acts, and conduct, resulted in the alienation of her daughter's affection for her husband, and, if so, whether, in so doing, she was actuated by malice, or by a proper parental regard for the welfare and happiness of her daughter, and this brings us to a consideration of the action of the court in granting and refusing instructions.

In a suit of this kind, brought by the husband against a parent of his wife, upon allegations that the defendant has enticed the plaintiff's wife away from him, and alienated her affection for him, it is not enough to show that the defendant has actually done the acts charged and that they have resulted in an abandonment of the plaintiff by his wife, but a material element is the intent or purpose that controlled the parent's action. This court has held that:

"The question always must be, was the father moved by malice, or was he moved by proper parental motives for the welfare and happiness of his child?" Tucker v. Tucker, 74 Miss. 93, 19 So. 955, 32 L.R.A. 623.

The presumption in all such cases is that the parent has acted only for the best interest of the child, and the burden is upon the plaintiff to overcome this presumption and to show that the defendant had been prompted by malice in what was said and done.

In recognition of this principle, the appellee requested and was granted two instructions defining the malice necessary to sustain the action, in the following language:

"(1) The court instructs the jury, for the plaintiff, that it is not necessary for you to believe that the defendants were angry at the plaintiff before you will be warranted in finding that they acted maliciously, but, if you believe that the defendants acted wrongfully and without a reasonable excuse, then you will be warranted in finding that they acted maliciously.

"(2) You are further instructed that the term `malice,' as used in the instructions in this case, does not necessarily mean anger, or a malevolent or vindictive feeling toward plaintiff, but a wrongful act without a reasonable excuse is malicious within the legal meaning of the term."

We think these instructions should have carried the further qualification that the act or acts complained of were intentionally wrongful. The act of a parent which results in the alienation of the affections of a child may be wrongful, and, when viewed in the light of after developments, without a reasonable excuse, but, unless the act was intentionally wrong, it would not constitute such malice as would support an action for such alienation of affections. We do not hold, however, that we would necessarily reverse the case for the errors in those two instructions alone, especially in view of the fact that Mrs. Keeton secured an instruction telling the jury that, although they might believe that she brought about the separation of plaintiff and his wife, still they must find for the defendant Mrs. Keeton if they believed she acted from the proper motive of a mother in caring for the welfare and happiness of her child.

The appellee also secured the two following instructions, the granting of which is assigned as error:

"(9) The court instructs the jury for the plaintiff that, if you believe from the evidence in this case that the defendants wrongfully caused plaintiff's wife to be taken from him and by words and acts caused her to lose her affection for him and to refuse to live with him, then it is your sworn duty to find for the plaintiff.

"(11) The court instructs the jury for the plaintiff that, if you believe from a preponderance of the evidence and surrounding circumstances, as shown by the evidence in this case, that the plaintiff's wife's affections for him were alienated because of the acts or persuasions of the defendants, then it is your sworn duty to find for the plaintiff."

These instructions are manifestly erroneous, and are in conflict with instructions granted to the defendants. The first of these instructions makes the defendant's liability depend upon the mere wrongfulness of their acts, regardless of the motives prompting them. The question to be solved by the jury is, Was the parent moved by malicious motives, or by proper parental motives for the happiness and welfare of the child? If the parent is actuated by proper and reasonable parental regard for the happiness and welfare of the child, mere wrongfulness of his or her acts, from the standpoint of good judgment as to the wisest and best course to be taken, will not authorize the recovery of damages against the parent. As said by this court in the case ofTucker v. Tucker, supra:

"In his advice, and in his action, he may have erred as to the wisest and best course to be taken in dealing with a question so delicate and so difficult, but he is entitled, in every case, to have twelve men pass upon the integrity of his intentions," — and, if his motives are found to be based upon a proper parental regard, he is not liable in damages, although, in the light of after developments, his action may appear to have been wrongful.Tucker v. Tucker, 74 Miss. 93, 19 So. 955, 32 L.R.A. 623;Jones v. Monson, 137 Wis. 478, 119 N.W. 179, 129 Am. St. Rep. 1082; Beisel v. Gerlach, 221 Pa. 232, 70 A. 721, 18 L.R.A. (N.S.) 516; Multer v. Knibbs, 193 Mass. 556, 79 N.E. 762, 9 L.R.A. (N.S.) 322, 9 Ann. Cas. 958; Oakman v. Belden, 94 Me. 280, 47 A. 553, 80 Am. St. Rep. 396.

The error in the next instruction numbered 11 is even more glaring. In this instruction liability is made to depend upon the mere fact of the alienation of the wife's affections, by the acts or persuasions of the defendants, without reference to whether such acts were malicious, or were prompted by proper motives, or were reasonably justified under the facts and circumstances in evidence. This instruction is in conflict with other instructions, and it swept away practically every vestige of appellant's defense, and we think the granting of this instruction alone was reversible error.

By instruction No. 3, granted the appellee, the jury were told that:

If they "believe from the evidence that any one of the defendants did any act or said any word to plaintiff's wife, for the purpose of separating them and alienating her affections from plaintiff, then he or she is liable to plaintiff, provided you further believe that such act or word, if any, caused plaintiff's wife's affections to be alienated or contributed thereto."

This instruction is also erroneous, for the same reasons assigned in reference to the instruction last above discussed. It makes the fact of alienation of the affections of the wife controlling, without reference to the motives which may have prompted the act or word, which may have contributed to the alienation.

The appellee testified that his wife had a conversation with some one over long distance telephone shortly after they were detained in Chattanooga, and, over the objection of the appellants, he was permitted to testify that his wife told him that this conversation was with her sister, and he was also permitted to detail what his wife said she had told her sister in regard to any proposed activities of herself and her mother in regard to the matter. This was hearsay, and we think it should have been excluded.

The appellant assigns as error the refusal of the following instructions:

"The court instructs the jury, for Mrs. Daisy Keeton, that she, as the mother of Eloise Keeton, had the right and was under the duty to care for, watch over, counsel, and advise her whenever the necessities of the child's situation required, or justified such care, watchfulness, counsel, and advice. And the court tells you that this right and this duty do not end when the child marries, or becomes of age, but continues through life."

This instruction is copied almost literally from the body of the opinion of this court in the case of Tucker v. Tucker,supra, and, as an abstract statement of the right and duty of a parent to counsel and advise a child, is correct, but, as embodied in this instruction to the jury, we think it was properly refused. Without further qualifications, it was calculated to mislead the jury, and cause the fact of parentage to be magnified beyond its legitimate scope as a justification for the acts or conduct of the defendants.

Numerous letters written to the appellee by his wife before the marriage were admitted in evidence over the objection of the appellants. We think these letters were admissible as tending to show the state of mind of the wife and her affection for her husband, at the time of, and prior to, the marriage and separation.

On the cross-appeal, the judgment of the court below will be affirmed. On the direct appeal, the judgment will be reversed as to all the defendants, and judgment will be entered here in favor of the defendants Earl Keeton and David F. McRae, while, as to the defendant Mrs. Daisy Keeton the cause will be remanded to the court below.

Affirmed on cross-appeal, and reversed on direct appeal.