Burton v. Burton

133 N.E. 612, 77 Ind. App. 436, 1922 Ind. App. LEXIS 26

• Court: Indiana Court of Appeals
• Decided: January 26, 1922
• Docket: No. 11,098
• Status: Published

Opinion

Nichols, J.

This action was by appellant against appellees to recover damages for the alleged alienation of the affections of appellant’s husband.

The errors assigned are: (1) The court’s action in overruling appellant’s demurrer to the second paragraph of answer; (2) the court’s action in overruling the motion for a new trial.

1. The second paragraph of answer is, in substance, that appellees separately, severally and jointly at all times acted as brothers and sisters honestly and in good faith and with a sincere desire to promote the welfare, health and happiness of their brother, appellant’s husband, and at all times acted without malice or ill will toward appellant or toward any other person or persons, and without any intent, desire or purpose to influence said husband in his relationship with appellant, and without any intent, purpose or desire to alienate the affections of said husband of appellant, and without any intent, purpose or desire to deprive appellánt of the consortion of her said husband, and without any intent, purpose or desire to deprive the said husband of any- of his property or appellant of any of her husband’s property, or the enjoyment thereof.

Appellant in her propositions treats such second paragraph of answer as a plea in confession and avoidance, and cites authorities to that effect, but in her memoranda to her demurrer she does not so treat it. She there says that such second paragraph is no more than a denial of the complaint, if that. In this statement we think she has well spoken. The bad faith of appellees is averred in the complaint, wherein it is alleged that appellees unlawfully, wrongfully and maliciously inspired appellant’s husband' with hatred and ill will toward her, and that as a result they did completely alienate his affections for her, and that they did wickedly and maliciously induce and persuade him to leave her and his said home, and that they did take him from his home to their home for the purpose of fully carrying out their intent. Such second paragraph is not more than a denial of these averments.

There is no evidence that is admissible under such second paragraph of answer that would not be admissible under the general denial which is pleaded. Error, if any, in overruling the demurrer was therefore harmless. Waters v. Delagrange (1915), 183 Ind. 497, 109 N. E. 758; Leonard v. City of Terre Haute (1911), 48 Ind. App. 104, 93 N. E. 872; State, ex rel. v. Daly (1911), 175 Ind. 108, 93 N. E. 539.

Appellant has assigned as a reason for a new trial that the evidence was. insufficient to sustain the verdict, but after rejecting all of the evidence offered by appellee which appellant has denied in rebuttal, there is still ample evidence uncontradicted to warrant the jury in finding against the appellant on the allegations in her complaint.

2. Appellant has complained of certain instructions that were given, but as under the evidence they could not have influenced the jury in its verdict, we do not discuss the alleged errors. It appearing to the court that the merits of the cause have been fairly tried, intervening errors, if any, cannot prevail. §700 Burns 1914, §658 R. S. 1881.

The judgment is affirmed.