Wolf v. Wolf , 39 S.D. 347 ( 1917 )

POLLEY, J.

The plaintiff, Gale Wolf, brought this action against John Wolf, Dora Wolf, and A. G. Wolf, for the recovery of damages sustained by her because of the alleged alienation of the affections of her husband, David Wolf, by the defendants. John Wolf is a brother of plaintiff’s husband, David Wolf. The action was dismissed as to Dora Wolf and A. G. Wolf, and plaintiff had judgment against the defendant John Wolf. From such judgment, and an order overruling his motion for a new trial, John Wolf appeals.

[i] There is no evidence that appellant ever directly advised or counseled respondent’s husband, David Wolf, to abandon or desert, or even to neglect her; but she claims that such abandonment and desertion were the logical and probable result of a long course of malignant conduct on the part of appellant. Over appellant’s objection, the trial court permitted respondent to show that appellant had a great dislike for respondent prior to her marriage to his brother, that he opposed such marriage, and that he was heard to say, at about the time the marriage took place, that he had rather follow his brother to his grave than to see him married to respondent. Whether this evidence was competent or not, had1 it been followed up by other evidence tending to connect it with subsequent events, it is not necessary to determine. There is no such evidence. If the testimony of respondent herself is to be given any credit whatever, she and her husband lived together in perfect harmony, and without any interference whatever by appellant, from the time of their marriage, which occurred in June, 1896, until during the month of May, 1909. It is true that, during a large portion of this time, respondent and her husband were not living in the same community with appellant; but there was no time when there was not sufficient opportunity to interfere, had appellant been so disposed. Evidente of the above facts in no way tended to prove any of the issues of the case, and should have been excluded' by the court.

[2, 3] During the last four or five years that respondent and her husband lived together, he was engaged in the banking business, and, during a portion of this time, appellant was associated with him in such business. Over appellant’s objection, the trial court admitted a large volume of testimony relative to financial troubles growing out of the various banking transactions. This evidence had no relevancy to the issues involved, and was afterward withdrawn from consideration of the jury by the court. While it was undoubtedly admitted1 with the expectation on the part of the court that it would be connected with other evidence tending to prove the issues in the case, and was withdrawn from consideration of the jury' when its irrelevancy became apparent, the impression it made upon the minds of the jury could not have been 'otherwise than prejudicial to' the rights of appellant. But, conceding all the evidence that was received at the trial to be relevant and material, it is not sufficient to support the verdict. There is no evidence in the record that tends to show that appellant did1 anything, intentionally or unintentionally, to alienate the affections of respondent’s husband, or that he was actuated by malice in anything that he did. The worst he is shown ever to have said of her is that she was insane, and the most that he ever suggested in regard to a separation was that she ought to be sent some place where she could have medical treatment.

[4] About the time of the commencement of this action, respondent’s husband commenced an action against her for a divorce. This action was tried, and resulted in a decree of divorce in favor of the plaintiff. Appellant offered the judgment roll in that case in evidence at the trial of this case. It was refused admittance, and we think propertly so; but the findings of fact made by the court are set out in the record in this case, and may properly be referred' to. Finding of fact No. 5 reads as follows:

“That for many years last past the defendant has treated the plaintiff with extreme cruelty, and has inflicted upon the plaintiff grievous mental suffering continuously for more than 10 years last past. That the plaintiff during- all of his married life has been a member' of the Methodist Episcopal Church, and has always been desirous and often in the habit of attending church service, and has always been in the habit of saying grace or asking the blessing at meal time in his family. That for many years prior to the commencement of this action the defendant has been in the habit of mocking and jeering at the plaintiff’s religious observances. That when asking a blessing at the table she frequently in an angry manner would call him a hyprocrite, and in the presence of the children, and sometimes in the presence of strangers,- would continue to pour out the coffee and otherwise arrange dishes on the table during the time that the plaintiff was asking the blessing. That she would do this intentionally, either through anger, or in order to show her contempt and derision for the plaintiff’s religious observances. That she encouraged the children in 'disobedience and contempt for the plaintiff’s authority. That she on different occasions, without any cause or grounds therefor, accused the plaintiff of undue familiarity and improper conduct with the women Sunday school teachers of the Methodist Episcopal Sunday school at Kennebec, of which Sunday school the plaintiff was at the time the superintendent. That she frequently referred to the plaintiff and his people as being ‘low-lived, having been brought up in a hogpen,’ and on one occasion, in speaking to the plaintiff of his sister Dora, who was born with a deformity of the mouth, made a comparison in regard to Dora’s mouth which is unfit to be repeated or set out in the record of the court.”

The evidence taken in the divorce case is not before us, but the evidence contained in the record in this case fully sustains the above finding of fact. A careful reading of the testimony can lead to no other conclusion than that respondent’s present plight is the result of her own conduct and treatment of her husband during their married life. ' No doubt her.pitiable condition strongly appealed to the sympathies of the jury, as it certainly does to the sympathies of the court; but this does not entitle her to damages from the appellant. The burden was upon her to show, by a preponderance of -the evidence, that appellant, by his conduct, intentionally alienated the affections of her husband. This she not only failed to do, but, on the other hand, the evidence shows that she herself, if any one, alienated his affections.

The judgment and order appealed from are reversed.

WHITING, J., takes no part in the decision.