Fronk v. Fronk

141 S.W. 692, 159 Mo. App. 543, 1911 Mo. App. LEXIS 594
CourtMissouri Court of Appeals
DecidedDecember 4, 1911
StatusPublished
Cited by15 cases

This text of 141 S.W. 692 (Fronk v. Fronk) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fronk v. Fronk, 141 S.W. 692, 159 Mo. App. 543, 1911 Mo. App. LEXIS 594 (Mo. Ct. App. 1911).

Opinion

JOHNSON, J.

This action was begun in tbe cir-. cnit court of Worth county, September 1, 1909, to recover actual and punitive damages for tbe alienation of tbe affections of plaintiff’s husband. Tbe defendants are tbe father and step-mother of tbe bus-band, Harry Fronk, and tbe petition alleged that they [544]*544“wrongfully, wickedly and maliciously acted and cooperated together with the wrongful, wicked and malicious intent to cause plaintiff’s said husband to leave and abandon her . . . and on or about the-day of January, 1909, the defendants, pursuant to their said wicked, wrongful and malicious intent did wrongfully, wickedly and maliciously entice, influence and induce plaintiff’s said husband to leave and abandon her,” etc.

The answer, in addition to a general denial, pleads that plaintiff voluntarily separated from her husband and recites certain facts tending to show that the alienation of husband and wife had become complete before the date stated in the petition and was created by other causes than those charged in the petition. Further, the answer alleges “that repeatedly during the married life of the said plaintiff and her said husband, Harry E. Fronk, these defendants have counseled together and done everything in their power to induce said plaintiff and her said husband to live peaceably and happily as husband and wife.”

The first trial of the cause resulted in a verdict for plaintiff, but a new trial was granted defendants and, afterward, on motion of plaintiff for a change of venue, the cause was sent to Harrison county, where it was tried again, resulting in a verdict and judgment for plaintiff for two thousand dollars actual and five hundred dollars punitive damages. After unsuccessfully moving for a new trial and in arrest of judgment defendants appealed. Their principal contention is that the court should have granted their request for a peremptory instruction.

At the threshold of our inquiry into this branch of the case we are confronted with a vigorous attack made by respondent on the sufficiency of the abstract of the record filed by appellants to present as an issue In this court the question of the soundness of the ruling of the trial court in refusing to direct a verdict for [545]*545the appellants. The insistence of respondent is that the rules of appellate procedure in this State require an appellant, if he would have his demurrer to the evidence considered on appeal, to set out in his abstract all of the evidence in haec verba and that appellants have not presented all of the evidence in their abstract, nor have they given the testimony of the witness in the form of the questions and answers asked and answered at the trial and preserved in the bill of exceptions. In support of this contention, and for that purpose only, respondent has filed an additional abstract containing extracts from the bill of exceptions. Appellants insist they have complied with the rule by reciting all of the evidence. To aid in the settlement of this dispute the parties have brought the bill of exceptions and we have taken the pains thoroughly to go over these several documents. The bill of exceptions contains approximately three hundred typewritten pages of evidence consisting chiefly of the testimony of witnesses. The abstract of appellants includes about seventy-five printed pages of evidence in a condensed form. The abridgement does not consist of the omission of any of the evidence. The testimony of every witness is included, but such testimony is given not in the form of questions and answers but in what purports to be the witness’s own narrative. The abstract states on its face that it contains all the evidence and we think it does in a narrative form.

The first question, therefore, is this: Were the appellants required by the rules of procedure to abstract the testimony of witnesses in the form of questions and answers and without any abridgment of the bill of exceptions, in its recitals of such evidence? In Doherty v. Noble, 138 Mo. 25, the Supreme Court say:

“Appellate courts review the evidence in equity cases and unless all of it, or its substance (italics ours), is preserved in the record, we must act on the [546]*546presumption that the trial court decided correctly. The omitted evidence may be controlling and we must assume that it was.”

In Reed v. Peck, 163 Mo. l. c. 336, the same court say: “Appellants virtually concede that all of the evidence is not embraced in the abstract, the evidence of several of the witnesses being left out entirely, while as to others only a brief synopsis or summary of what' is called by defendants the substance of such testimony. As was said in the case of Epstein v. Clothing Co., 67 Mo. App. 221: ‘It will not do to allow appellant’s counsel to cull over the record and present such evidence as they may think pertinent or material; the entire evidence must he set out, so that this court may, for itself, determine its materiality and probative force.’ So in Davis v. Vories, 141 Mo. 234, it was held that the Supreme Court will not pass upon the insufficiency of the evidence where it is not fully set out in the record. The same rule is announced in Ogelbay v. Kansas City College of Dental Surgery, 71 Mo. App. 339.”

And in Harrison v. Pounds, 190 Mo. 349, where certain important evidence was omitted from the abstract it is held: “It is the settled rule of law in this court that,where we are asked to pass upon a demurrer to the evidence or as to whether there is any evidence to establish a fact, the appealing party must bring all the evidence before this court; otherwise we will not disturb the finding of the trial court.”

Passing to the decisions of this court on the same subject, the first case to which our attention has been directed by respondent is Groodson v. Railway, 23 Mo. App. 76, where this court, speaking through Hall, J., says: ‘ ‘ The appellant should have set out m his abstract, in haec verba, so much of the transcript as contained all the evidence on that question. . Without such an abstract we are unable to say what was the evidence or what was its effect, unless we examine the tran[547]*547script. The appellant in his abstract has not pretended to set out the evidence as contained in the transcript in the words used in the transcript. The appellant has simply set out in the abstract his version of the evidence, that is to say, what the effect or meaning of the evidence was in his opinion. Without the words used in the transcript we cannot treat the abstract as the record itself.”

To the same effect is the decision in Meriwether v. Howe, 48 Mo. App. 148. In Nash v. Brick Co., 109 Mo. App. l. c. 604, in an opinion written by Smith, P. J., we say: “When a case is brought here by appeal or writ of error and the defendant assigns for error the action of the trial court in denying a demurrer interposed by him to the evidence adduced by the plaintiff in that court we will not consider such assignment unless the whole evidence is set out in haec verba in the abstract. This rule has been long established and steadily observed. [Goodson v. Railroad, 23 Mo. App. 76; Meriwether v. Howe, 48 Mo. App. l. c. 152; Doherty v. Noble, 138 Mo. 25.] The abstract in the present case presents a number of excerpts of the evidence taken from the bill of exceptions and mingled with statements of the substance of other parts, of it, or with defendant’s conclusion as to what such other parts of it conduces to prove.

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Bluebook (online)
141 S.W. 692, 159 Mo. App. 543, 1911 Mo. App. LEXIS 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fronk-v-fronk-moctapp-1911.