Barton v. Barton

94 S.W. 574, 119 Mo. App. 507, 1906 Mo. App. LEXIS 262

• Court: Missouri Court of Appeals
• Decided: May 22, 1906
• Status: Published

Opinion

GOODE, J.

(after stating the facts). — Plaintiff’s theory is that her mother-in-law and sister-in-law desired her to go to Arkansas in order to accomplish a separation between herself and husband. It may be said that there is little, if any, evidence to prove this particular theory is correct. The impression produced is that Mrs. Barton’s business was being injured, her boarders annoyed by plaintiff’s behavior and she herself broken down in health. On one occasion Mrs. Barton and plaintiff had a conference about Earl’s drinking habit and the mother suggested that it would be a good plan to get him in the navy or regular army, where the authorities would make him stop drinking. Plaintiff said if he went into the army or navy she wanted a divorce from him; that if she had to be married to him she wanted him to stay with her and if he was going away she wanted a divorce from him before he went; that she did not want to be tied to him while he lived away from her.

The statement contains the substance of the testimony in this case, as well as we have been able to digest it from a record covering several hundred pages. No digest of the evidence can present an accurate picture of the behavior of plaintiff and the life she led her mother-in-law. Plaintiff’s conduct is inexplicable, except on the theory of a nervous condition bordering on or amounting to the disease of hysteria; or else on the theory that she is of a violent temper and sought to force people about her to yield to her will by making humiliating scenes. A child was born to her and died; and it may be that the anxiety and nervousness pertaining ,to pregnancy, and similar conditions of health after her confinement, had much to do with her strange conduct. There is no testimony to that effect, but the thought occurred to us.

Some of the important facts which stand out prominently on the record of the case are these: Earl Barton was a minor, son of Eva Barton when he married plaintiff and when he left her. Though the marriage was without her knowledge, Mrs. Barton made no complaint, but accepted the situation pleasantly and did what she could to promote the comfort and welfare of the young couple; she treated them well, showed solicitude for her daughter-in-1 a\y’s health, took them into her home whenever they wanted to stay with her, until plaintiff’s conduct became unbearable; furnished, or offered to furnish, them a separate home at other times; reunited them once when Earl had left the plaintiff; and expressed an earnest desire, in a conversation with plaintiff just before the final separation, for the two to live together.

The question raised for.our first consideration is, whether or not there was any substantial evidence to support the jury’s verdict. The gravamen of the cause of action in a case like this one, is maliciously inducing one spouse to separate from and abandon the other. [Nichols v. Nichols, 134 Mo. 187, 194; Id., 147 Mo. 387, 401.] Therefore, the question we have stated goes to the sufficiency of the evidence to warrant a finding that Mrs. Barton and her daughter Gladys maliciously induced Earl Barton to separate from plaintiff. A prolonged and attentive study of the entire record has yielded the conviction that those defendants were not the cause of the separation, but that it was brought about by the dispositions and behavior of the plaintiff and her husband; but Ave have been unable to reach the conclusion that there is no substantial evidence to support the verdict. The witness Edmondson testified positively to hearing Mrs. Barton declare to Earl Barton that he had to leave plaintiff, who Avas ruining him, and that if he did not leave her, she (the mother) Avould go crazy. There Avas testimony that Gladys Burkhart on several occasions said Earl had to go aAvay from his wife and she Avould furnish the money for the purpose. The testimony of Mrs. Lease and her daughter is of some weight in favor of the finding that Mrs. Barton and Mrs. Burk-hart induced Earl to leave plaintiff. All the foregoing testimony is, we think, consistent with the view that the defendants merely wished to get rid of plaintiff until she would comport herself in a rational way, so that Mrs. Barton would not be distressed or her business injured, or Earl Barton confirmed in his bad habits, and without any desire to separate plaintiff’s husband from her. Yet the testimony of those witnesses is susceptible of the view that the intention of the defendants was to bring about a separation. Granting that Mrs. Barton and her daughter induced the separation, a material fact is the motive with which they acted, as will appear from the authorities to be cited; which hold that the motive moving a parent to interfere with the marital relations of a child is always of the essence of an action against the parent for inducing a separation between the child and his or her spouse. This doctrine would be inapplicable in favor of Gladys Burkhart, sister of Earl Barton, if the action was against the former alone. But she is jointly sued with her mother in a petition charging, in effect, a conspiracy to bring about a separation; and whatever would justify action of that sort by the mother, would excuse the daughter’s help. We have then to decide, not only that there is support for the finding that the defendants caused Earl Barton to abandon plaintiff, but that they did this maliciously; that is, intentionally, and without just cause or excuse. ' If, in point of fact, the defendants induced the abandonment, the evidence warranted the finding that it was done maliciously, in the legal sense of that word, if the jury believe plaintiff had been guilty, of no conduct which justified Mrs. Barton in causing the separation. The evidence may have shown such conduct; but it was not so conclusively shown as to exclude the possibility of a fair inference to the contrary. If there was no good reason why plaintiff’s husband''should leave her and Mrs. Barton did not suppose there was, yet, nevertheless the defendants induced the separation, then they intentionally did a wrongful act without just cause or excuse. On the evidence adduced all those questions might be found either way by the jury.

The case was profusely instructed, but we are not entirely satisfied with the manner in which this was done. One fault in the instructions given at the plaintiff’s request is that, considered in the mass, they left out of view the vital fact of the relationship between Earl Barton and his mother and her maternal right to advise and influence him regarding his domestic affairs. Some of the charges made her right to do this depend on a request from the plaintiff, which is not the law. Other instructions erroneously omitted to require a finding that the defendants co-operated to bring about the separation, and others were comments on portions of the evidence. The latter fault occurs, too-, in instructions given at the instance of the defendants, which are not the subject of complaint on this appeal. The first and second instructions given for plaintiff are copies of instructions approved by the Supreme Court in Nichols v. Nichols, 147 Mo. 387, 392, and, of course, properly presented the case for the present plaintiff; and we may say stated quite fully the essential facts she was bound to prove to entitle her to a verdict. The fourth, fifth, sixth and seventh instructions given for plaintiff, did not require the jury to find that the defendants co-operated or acted maliciously in inducing the separation and, therefore, are erroneous; or, at least weaken the force of the instructions in which those findings were required and were apt to mislead the jury. This is a case in. which we feel that the plaintiff should be held to strict rules, to use the remark of Judge Cooley in a suit against a parent for a like cause of action. . [White v. Ross, 47 Mich. 172.] The petition is a copy of the one passed on in Nichols v. Nichols, 147 Mo. 387, and charges that the defendants “wrongfully and maliciously acted and co-operated together with the wrongful, wicked and malicious intent to cause plaintiff’s husband to leave and abandon her and cease living with plaintiff as her husband, and to deprive plaintiff of the aid, support, companionship, society, protection and affection of her said husband; .... that the defendants, pursuant to their said wrongful and malicious intent, did wrongfully, wickedly and maliciously entice, influence and induce plaintiff’s said husband to leave and abandon her; and her said husband being influenced by, and acting under, the said wrongful, wicked and malicious enticement did then leave and abandon her.” One essential fact to be proved was that the defendants co-operated with the intention of bringing about the separation. [Leavell v. Leavell, 114 Mo. App. 24.] This is so, not merely because the petition avers a conspiracy, but because the nature of the case is such that defendants are not jointly liable unless they co-operated. The case is for an intentional and not a negligent tort; one in which each defendant must have designed to cause the resultant mischief. Where the concurrent negligence of two or more persons contributes to do harm, the tortfeasors may be jointly sued, as in the case of a collision between two trains of different railway companies. [Newcomb v. Railroad, 169 Mo. 409, 69 S. W. 348; Miller v. Ditch Co., 87 Calif. 430, 22 Am. St. Rep. 254; Missouri, etc., Railroad v. Vance, 41 S. W. (Texas) 167; 1 Kinkead, Torts, sec. 46.] But where the torts are intentional and independent of each other, though their combined influence may result in an injury, it seems there is no joint liability. [1 Kinkead, Torts, sec. 44, 45, 46.]

Not only must the defendants have conspired or cooperated in causing the separation and have done so intentionally, they must also have acted maliciously; which, as said, means without just cause or excuse. Circumstances will excuse a parent for advising a child regarding Ms or her domestic affairs, and even influencing a separation from the child’s spouse which will not always suffice to excuse the like interference by other persons. All the authorities support this proposition. And it is especially applicable to the case of a minor child like Earl Barton, who is still under the guardianship of his parent. We are not to be understood as intimating that a parent may, without good cause, influence a child to separate from a spouse; to do so is a tort for which the parent, like any other person, is liable. We mean to say that the law recognizes a superior right of interference on the part of a parent; and will justify the interference for a cause which would be no justification in favor of another person. This rule prevails because of the law’s respect for that anxiety parents feel for their cMldren and which impels to efforts to promote a child’s welfare and happiness. TMs natural impulse prompts advice and assistance in domestic troubles, as well as in others. Moreover, there is a moral duty on the part of a parent to look after the child’s well-being, even in its adult life; a duty which prevails with greater urgency and force while the child is yet a minor under parental control, and untrained by experience to care for itself. It has been declared that stronger proof is required in an action against a parent for causing a separation between husband, and wife than in actions against other defendants. In Pollock v. Pollock, 29 N. Y. Supp. 27, the court said: “Increased intensity of the proof is required in actions of this character, when recovery is sought against a parent. The motives of a parent, in harboring, sheltering, and otherwise extending aid and assistance to a child, are presumed to be good until the contrary isshown. Such is the. current of opinion of text-writers and such is ruled in adjudged and reported cases.” In Cooley on Torts is this text:

“If, however, the interference is by the parents of the wife, on an assumption that the wife is ill treated to an extent that justifies her in withdrawing from her husband’s society and control, it may reasonably be presumed that they have acted with commendable motives, and a clear case of Avant of justification may be justly required to be shown before they should be held responsible.” . [Cooley, Torts (2 Ed.), p. 264.]

There is difficulty in applying this rule so as to yield practical results when a jury is the trier of the facts; for, after all is said, if there is evidence for the jury to weigh and it determines that the parent acted without good cause, the comparative weakness or intensity of the proof has no effect. But the spirit of the law may be, and ought to be, recognized to the extent of insisting that the jury be instructed consistently on the necessity of finding a malicious purpose on the part of a parent as a condition precedent to an award of damages. We incline to exact a strict observance of this rule in the present case, and think some of the instructions for the plaintiff were faulty in not requiring malice to be found. The evidence of it is slight. Wherefore, it is the more important that the issue of malice should be held up to the jury in all those charges which attempt to state the grounds of a verdict for plaintiff.

It may not be amiss to notice some of the expressions of the courts in similar cases regarding the law of the immediate point. All the later decisions defer to the authority of Hutcheson v. Peck, 5 John. (N. Y.) 196. The action was for enticing away plaintiff’s wife and separating her from him. The wife was the daughter of the defendant. Spencer, J., commented on the novelty of the action, but said that was no argument against its being sustained, and that if a father maliciously and improperly afforded protection even to his child, against the Avill of her husband and thereby deprived the latter of the comfort he is entitled to enjoy from her aid and society, and action would lie. Thompson, J., said: “Although the light in which the law vieAvs a charge of this description may warrant the maintenance of an action against the father, when the circumstances are aggravated, yet no case of the kind is, I believe, to be found in the books; and in my judgment, such a case ought not to be considered as standing on the same footing as if the action was against a stranger. A father is bound, by the laws of nature, to afford protection and comfort to his child, and the same acts which in him ought to be considered as proceeding from parental affection, might, in a stranger, be deemed to proceed from improper and unjustifiable motives.” Kent, C. J., said: “If the defendant did not stand in the relation of father to the plaintiff’s wife, I should not, perhaps, be inclined to interfere with the verdict. But that relationship gives the case a new and peculiar interest; this is the first action of the kind I have met with, brought against the father. A father’s house is always open to his children; and whether they be married or unmarried, it is still to them a refuge from evil, and a consolation in distress. Natural affection establishes and consecrates this asylum. The father is under even a legal obligation to maintain his children and grandchildren, if he be competent, and they unable to maintain themselves; and according to Lord Coke, it is ‘nature’s profession to assist and maintain and console the child.’ I should require, therefore, more proof to sustain the action against the father than against a stranger. It ought to appear either that he detains the wife against her will, or that he entices her away from her husband from improper motives. Bad or unworthy motives cannot be presumed. They ought to be positively shown, or necessarily deduced from the facts and circumstances detailed. This principl e appears to me to preserve, in due dependence upon each other, and to maintain in harmony, the equally strong and sacred interests of the parent and the husband. The quo <mimo ought, then, in this case to have been the test of inquiry and the rule of decision. The judge told the jury that if the defendant was not actuated by improper motives, it would go very far in mitigation of damages. I think the instruction should have gone further, and the jury have been informed, in such a case, the verdict should be for the defendant." (The italics are ours.) Those deliverances of illustrious jurists have furnished the rule by which all later controversies of the same character have been determined in this country; and it may be said that the utterances of Chancellor Kent have been repeated exactly, or in substance, by most judges who have discussed the subject.

In Bennett v. Smith, 21 Barb. 442, which was an action for enticing away plaintiff's wife brought against her parents, the court said:

“In respect to what facts will support an action by a husband for depriving him of his wife, there is, in principle, a clear distinction between the cases where the action is against a parent of the wife, and where it is against a stranger. Parents are under obligations, by the law of nature, to protect their children from injury and relieve them when in distress; and their natural affection for their offspring dictates and prompts to such protection. This is recognized by the common law, and is the foundation of the rules which allow parents to do some things in respect to and in behalf of their children which are not allowed to be done by others, and which in some cases mitigate crimes committed by parents to which they are excited by injuries to their children . . . This duty of protection, in reason and justice,- extends to wrongs done or threatened by a husband as Avell as by other persons, and the acts of parents are entitled to be regarded in the same spirit in such a case as in others.. Where the conduct of a husband is such as to endanger the personal safety of his wife, or is so immoral and indecent as to render him greatly unfit for her society, so much so that she Avould be justified in abandoning him, her parents ought to, and I have no doubt have the right, not only to receive her into, and allow her the comforts of their home, which even a stranger may do in such a case, hut also to advise her to come and remain there. No parent with ordinary parental feelings will, under such circumstances, hesitate to go so far for the relief of his children, and the common law will not, in my opinion, hold him responsible to the husband in damages for such conduct. And the same doctrine, in my judgment, is applicable to a case where the advice is given by a parent in the honest belief, justified by information received by him, that such circumstances exist, although the information may subsequently prove to have been unfounded. It is enough for his protection that he was warranted in such belief, and acted from pure motives. ... If the views I have already expressed are correct, the learned justice erred in his instruction to the jury that the father was liable if he advised the wife to stay away from her husband without regard to his motives; and also in excluding the evidence offered. The matters proposed to be proved, if established, and the father was influenced by them in advising the daughter to remain away from her husband while his habits of drunkenness and gross immorality and indecency continued, would have fully justified him in giving that advice, and so far' as related to that act, constituted a complete defense to him in the action.”

In Tucker v. Tucker, 74 Miss. 93, an action against parents for inducing a son to abandon his wife, the court said:

“A few general observations on the law applicable to the conduct of a parent in counseling and advising a married child, in cases of this character, will suffice to show the erroneous view which prevailed in the trial below, without considering seriatim the charges given and refused, or modified by the court. In every suit of this character, the prime inquiry is, from what motive did the father act? Was it malicious, or was it inspired by a proper parental regard for tlie welfare and happiness of the child? The instinct and the conscience unite to impose upon every parent the duty of watching over, caring for and counseling and advising the child at every period of life, before marriage and after marriage, whenever the necessities of the child’s situation require or justify such action on the parent’s part. The reciprocal obligations of parent and child last through life, and the duty of discharging these divinely implanted obligations is not, and cannot be, destroyed by the child’s marriage. Multiplied instances will occur to the mind in which a failure of the father to speak and to act would be regard-, ed with horror. A daughter who has recklessly contracted an undesirable marriage with a man utterly unworthy to be the husband of a virtuous woman, against the wish and over the vigorous protest of the father, and who has, by such ill-starred union, been brought to wretchedness and humiliation and want of the ordinary comforts of life, may surely be advised, counseled and cared for in the paternal home, even against the will and expressed wish of the unfaithful husband. 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? 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.”

In Huling v. Huling, 32 Ill. App. 519, an action against parents for inducing their son to leave his wife, the court said:

“The instructions given for the defendant advised the jury that a parent has a right in a moderate, intelligent and careful manner to advise a son as to his domestic affairs, and even as to living with his wife, and that if such counsel and advice be given in good faith and from worthy motives, the wife has no cause of complaint, even though such advice may contribute in some degree to the result of causing a separation. The distinction between the case of a stranger and that of a parent has been frequently recognized and it is no doubt well settled that a parent may, when acting in good faith, give his advice on this important subject, without incurring liability. [Hutcheson v. Peck, 5 Johns. 195; Smith v. Lyke, 13 Hun 204; Payne v. Williams, 4 Baxter 583; Schouler’s Domestic Relations, sec. 41; 2 Hilliard on Torts, 510.]”

Other decisions announcing the same doctrine are Pollock v. Pollock, 29 N. Y. Supp. 37; Rice v. Rice, 104 Mich. 371; Burnett v. Burkhead, 21 Ark. 77, 80; Young v. Young, 8 Wash. St. 81; Love v. Love, 98 Mo. App. 562, 569, 73 S. W. 255; Modisett v. McPike, 74 Mo. 636-647.

The third and eleventh instructions given for plaintiff made defendant’s right to interfere with plaintiff’s domestic affairs depend on a request from plaintiff. We knowr of no support in law for that theory. If Earl Barton sought advice from the defendants, or they had good cause to offer him advice in regard to his life with plaintiff, the law would justify them in interfering without a request from plaintiff. It has been determined bv an eminent court that if a parent believes there is good reason for advising his child regarding the latter’s con-' jugal affairs, the parent is warranted in interfering, even though, in fact no cause existed. [Bennett v. Smith, supra.] The theory declared by the court practically gave plaintiff absolute rights in regard to her conjugal relations without regard to the rights or interests of her husband. It permitted her to justify the interference of the defendants by inviting it, but her husband was accorded no such privilege. The two spouses enjoyed an equality of rights before the law. The essential fact is not so much that defendants intentionally interfered with the purpose to bring about a separation, as that they did so without good cause. An instruction embodying that idea was requested by defendants and refused by the court, though it was an exact copy of one approved by the Supreme Court in Nichols v. Nichols, supra. Expressions are found in some of the instructions to the effect that, though plaintiff’s husband had given her good cause for a divorce by his habits, yet if she was willing to abide with him notwithstanding his misconduct, then his bad habits constituted no defense to this suit. That proposition, no doubt, is sound. If Earl Barton was guilty of misconduct entitling his wife to a divorce, but she was willing to condone the injury, the defendants were not justified in inducing a separation because of his misconduct. The error of the charge consists in the fact that no defense of the kind was made. There was not the semblance of a contention by defendants that they were justified in causing a separation on account of Earl’s mistreatment of plaintiff. The lines of defense indicated by the testimony introduced and the instructions requested by the defendants were, that they did not cause the separation and that what they said regarding plaintiff living in Mrs. Barton’s home and continuing in conjugal relations with her husband, was due partly to the effect of plaintiff’s behavior on Mrs. Barton and partly to its effect on Earl. The instructions we are noticing must have been inspird by remarks in the opinion in Modisett v. McPike, 74 Mo. 636, which import that though a, wife has just cause for separating from her husband, yet if she elects to abide by her situation, no one, be he parent or stranger, is justified in promoting discord between them and thereby causing a separation. Those remarks were made in a case wherein a man was sued for alienating the affections of another’s wife and the defense was that the wife had been estranged from her husband by his bad treatment. Some of the instructions given for the defendant expressed the theory that if the husband’s conduct had afforded the wife ground, for a divorce, that fact constituted a complete defense, regardless of whether or not the defendant had advised her to separate from her husband. Instructions given for the plaintiff told the jury that if defendants had prejudiced the wife against her husband and caused the separation and divorce, and that, but for the defendant’s influence, these events would not have occurred, the husband’s drunkenness and misconduct were no defense. It was ruled that the two sets of instructions were inconsistent and those given for the defendant erroneous. In commenting on them the court said:

“The wife may have a just cause for separation or divorce, but she may elect to abide by her situation and remain with her husband nevertheless. If she chooses to do so, no stranger has the right to intermeddle with the domestic and marital relations of husband and wife, and if he voluntarily does so he is amenable for the consequences. If, on the contrary, the wife having just cause for the separation, or for obtaining a divorce from her husband, voluntarily seeks the advice, shelter and protection of a relative, or even a stranger, then a different rule obtains. In such- a case the wife has the unquestioned right to seek and accept the advice and protection of a relative or stranger from the intolerable abuse and wrongs of her husband. And in such case, also, such relative or stranger so affording such protection or advice to the wife, is not answerable to the husband for such conduct, if he acts in good faith and from motives of kindness and humanity. No one unasked, especially a stranger, has the right to volunteer his advice or protection, and if he does so he is amenable. ‘It is one thing to actively promote domestic discord, but quite another to harbor, from motives of kindness and humanity, one who seeks shelter from the oppression of her own lawful protector.’ It has been well said that ‘such conduct, whatever the motive, is exceedingly perilous on the part of a stranger, generally open to misconstruction, and never to be encouraged. They should leave the parties to their legal remedies against each other. With parents it is different.’ ”

Whatever may have been the propriety and force of those observations on the facts which gave occasion for their utterance, they do not justify the instructions alluding to the present plaintiff’s willingness to condone her husband’s misconduct. They referred to the instance of an injured spouse being worked on by a stranger and induced to leáve the guilty spouse. According to the hypothesis of the instructions under review, this is the case of a guilty husband being induced to leave a wife whom he had wronged. No one suggested for the defense in this case that a third person, parent or stranger, lawfully might persuade a husband to leave his wife, because he was mistreating her, if she was willing to endure his usage. It confused the issues and was prejudicial to defendants to introduce such a theory into the case.

For the errors noted the judgment is reversed and the cause

remanded.

Nortoni, J., concurs; Bland, P. J., agrees to the opinion, but dissents from the order to remand, and holds that the case ought to be reversed without remanding it.