Jefferson v. Kenoss

101 P.2d 711, 38 Cal. App. 2d 496, 1940 Cal. App. LEXIS 674

• Court: California Court of Appeal
• Decided: April 18, 1940
• Docket: Civ. No. 12343
• Status: Published

Opinions

MOORE, P. J.

This is an action for alienation of affections brought by the wife of Fleetwood Jefferson against his father, Benjamin H. Jefferson, and other parties. The trial resulted in a verdict in the sum of $5,000 against said Benjamin Jefferson and from the judgment based upon said verdict, he prosecutes this appeal. His contentions may be all discussed under two propositions, namely, (1) the insufficiency of the evidence to support the judgment; and (2) prescription by the one year’s statute of limitation.

Plaintiff was born in the land of the Aztecs and is of their blood. In the tender years of her childhood, her immigrant parents settled in California and established their home in the city of Ventura. The child grew up in the city of her adoption and soon gave promise of a rare talent for song. Through the assistance of her admiring fellow townsmen, she was enabled to enter Occidental college as a student, where, in 1932, she met the said Fleetwood Jefferson, who was also marked with a flair for the musician’s art. Their sudden interest in each other rapidly ripened into a mutual affection. Their marriage was celebrated on the 27th day of February, 1935, in the city of San Bernardino. After a brief honeymoon, Fleetwood escorted his wife to the home of her mother in the city of Ventura while he, himself, took shelter again under the roof of his father in the city of Pasadena. From that time he visited her weekly until the following month of April when they together occupied an apartment on North Marengo Avenue. . Although defendant had opposed the marriage of his son, little harm came of this. But, after they had established their own residence within the shadow of defendant’s home, the undermining of the foundations of the new domestic relations soon began. On the very day of plaintiff’s return from Ventura to Pasadena, defendant called her into his office and there stated to her in the presence of Fleet-wood: “Maria, you must remember that you must not come between Fleetwood and his career in any way. As long as you can, you must earn your own living, support yourself and let my son follow his own career.”

In the following June when the plaintiff was ill in her home, defendant called in time to greet his son upon arrival, only to reproach him in a querulous tone for not answering the card he had written to the son. Fleetwood excused himself with the explanation that Maria had been ill and he himself had been busy. The defendant replied: “Maria’s illness makes no difference. It is just that you think more of Maria than you do of me.” Upon Fleetwood’s protest that plaintiff was in a serious condition, the defendant proceeded: “That makes no difference; that is not a good reason for ignoring me either,” and in making his exit, called out “Don’t you ever speak to me again.” Thereafter, on other occasions when plaintiff was ill in her home, defendant accused her of feigning illness and told her that she might very easily become a hypochondriac and make it miserable for his son.

Defendant required Fleetwood to see him or communicate with him by telephone daily. Though he and his son were devoted to each other, the father never visited plaintiff at the hospital after the birth of his grandchild, and never entered the home where she lived in the absence of his son. So incensed was he at the presence of plaintiff that, notwithstanding the deep affection of his son for Maria, on March 1, 1936, acting upon defendant’s advice, Fleetwood took Maria to Ventura to remain for a period with her parents. This was the beginning of the end of the continuous conjugal happiness which plaintiff and her husband had enjoyed for almost a year. The next time she met him was in the Superior Court of Los Angeles County to which Fleetwood had caused his wife to be summoned in an action for divorce. In the course of a conversation, in the silent presence of defendant, Fleetwood explained to his wife that it was his father and his family who had caused him to start divorce proceedings. Defendant had selected and retained an attorney to institute said action and had paid the cost of its prosecution. But, in the midst of • the trial, a reconciliation was effected and that action was dismissed. It appeared thereafter for a while that plaintiff would enjoy her home again, but once more she had to drink the dregs of despair. On August 2, 1936, less than one month after said reconciliation, pursuant to appointment, plaintiff came from Ventura to meet her husband at a convenient corner in Hollywood. He was there accompanied by the defendant.

Plaintiff entered the automobile and a conference ensued in which Fleetwood explained that he must stay with his father. To all of her remonstrances, Fleetwood remained adamant in his obedience to the wishes of his father, who thereupon addressed plaintiff, saying: “Will you shut up? Will you stop discussing those things in my presence? don’t dare call me dad, now or ever. You have stolen my son’s affections. You have ruined my household; you have about killed me and killed my wife; get out; get out, you damn hussy.” Thereupon Fleetwood said to plaintiff: “Now, dear, you can see what hell I have had to go through. Can you understand why everything is so upside down? Can you see how I have tried and tried and I get this every morning and every noon and every night ? This is the sort of thing I have to go through for you. You know I love you and the only solution is to get away from this place, as far from my family as possible; we will straighten things out some way or other; we will have to straighten them out. We will go away from Pasadena and we will both go, if necessary, to San Francisco- or out of the state. You are my wife and nobody has the right to interfere.’’ Whereupon the defendant said: “All right, drive her to the hotel and be done with it,” and when they separated at the hotel, Fleetwood said: “Don’t worry too much, dear, it is just fate and the family is getting between us again.”

Plaintiff was then left to abide in the home of her parents where she received an occasional visit from her husband. His last visit to her said home was on the 5th day of January, 1937, the occasion of their last act of cohabitation. They met again on the 28th day of May when they discussed once more the reestablishment of a home. During the spring of that year, plaintiff wrote a number of letters to Fleetwood, while he was residing at the home of the defendant; these letters were never received by the addressee.

Her frail bark was finally shattered on August 2,1937, when she received a letter from her husband advising her that he had secured a divorce from her in Mexico. This was the first information which the plaintiff received of her husband’s intention finally to separate from her. She undertook to communicate with him at the home of defendant where for the first time she was introduced by defendant to Helen Kenoss, who had celebrated a marriage with Fleetwood in the Republic of Mexico and was then living with him as his wife at defendant's home.

In her continued effort to contact Fleetwood, she again knocked at the door of defendant’s home and inquired of him where she might find Fleetwood, to which the defendant replied: “I won’t tell you” and slammed the door in her face.

In the course of the cross-examination of plaintiff, defendant’s counsel elicited the testimony that on one occasion when Fleetwood had returned from a visit with his father, he stated to the plaintiff that his father had said to him: “Maria is not the wife for you, she will always be in the way. She is a spineless, worthless invalid. She has been ill since you married and I can see no future for you unless you separate from her” and on another occasion, addressing plaintiff, Fleetwood said: “I have come to the conclusion, Maria, absolutely, that my family will never like you or like your family. I was terribly embarrassed at your home today. Your mother and your sister prepared a dinner for us but my father absolutely refused even to enter the door of your home, which embarrassed me very much.” And again, Fleetwood said: “You know, Maria, I have come to the conclusion that you and I would have been very happy if it had not been for the interference of my parents. Now I am a man, I realize it should not have made any difference whether I .married a Chinese or a white girl, or any other nationality. However, it is too late. ’ ’

The fact that much of the foregoing was contradicted by defendant and his family and that many facts were given in testimony in favor of the defense is of no moment since the verdict is amply supported. No criticism is directed to the instructions of the court, or to the conduct of the jury, or to the behavior of plaintiff’s counsel in the course of the trial. It is true that said hearsay evidence was received but it was proof of Fleetwood’s state of mind. The letter of Fleetwood to his wife was received in evidence, without objection, to impeach his testimony to the effect that his father had not objected to the marriage.

While more evidence is required to support a judgment for alienation of affections against a parent than against a stranger (Horowitz v. Sacks, 89 Cal. App. 336 [265 Pac. 281]) yet when a parent, from improper motives, induces his son to separate from his wife, such parent will be liable in damages to the aggrieved spouse. In such cases, it is not necessary to prove that the parent is moved by a malignant and revengeful disposition but it is sufficient if it be shown that he acted from improper motives. (13 R. C. L. 1471.) If the evidence is sufficient to show that the separation was the result of the improper and active interference of the parent and if it appears that the husband would have gone back to his wife but for such interference, either by threats, persuasions or arguments, then such parent has done a wrong to the wife of the son and she is entitled to compensation for the wrong. (Oakman v. Belder, 94 Me. 280 [47 Atl. 553, 80 ].) The wife has the right to the conjugal affection and society of her husband; it is a valuable right and for loss of it by reason of the unlawful interference of another, she is entitled to compensation. No one is privileged to deprive a wife of the comfort and happiness which is hers by reason of her marital status and of her fulfillment of her own marital obligations. Also, the welfare of their children gives to each the right to the affection, companionship and society of the other. (Price v. Price, 91 Iowa, 693 [60 N. W. 202, 51 Am. St. Rep. 360, 29 L. R. A. 150].) Although a parent has wide liberty in giving advice to his son relative to his domestic relations and may even advise him that his health or happiness will be rendered more nearly secure by putting away his wife, so long as he has not been actuated by malice or improper motives, yet if he was actuated by a vengeful spirit, he is liable in damages for causing the separation of his son from his wife. (Multer v. Knibbs, 193 Mass. 556 [79 N. E. 762, 9 Ann. Cas. 958, 9 L. R. A. (N. S.) 322].) “It is no defense to an action for the alienation of the affections of a spouse that the conduct of the defendant was not the sole cause of the separation and loss of affections. It is sufficient if the defendant’s conduct was the procuring or controlling cause of the alienation of affections although other reasons may have contributed to some extent.” (Rogers v. Haines, 104 Cal. App. 191, 195 [285 Pac. 412].) The protection afforded the parent in such actions is neither universal nor absolute. If the facts are sufficient to warrant the jury in believing that the father has acted maliciously and unjustifiably in bringing about the separation of his son from his wife, the father is just as liable to the injured spouse as if he were a stranger. (Note, 46 L. R. A. (N. S.) 469.) In the light of these authorities, the evidence was sufficient to convict the defendant of malice toward the plaintiff. His refusal to visit the hospital where his grandchild was born; his refusal to enter the home of the plaintiff in the absence of Fleetwood; his advice to his son to transport her back to her mother’s home in the spring of 1936; his active interest in the prosecution of said divorce proceedings instituted by Fleetwood; his vicious behavior toward the plaintiff at said meeting on the 2d of August, 1936; his encouragement to Fleetwood to marry said Helen Kenoss in 1937, without having satisfactory knowledge of his divorce from the plaintiff, and his numerous discourtesies and incivilities toward plaintiff at her home and at his home are sufficient, if believed by the jury, to prove that in all of his behavior toward plaintiff, he was prompted by malice.

The authorities cited by the defendant are not in point. (Smith v. Kiger, 5 Cal. App. (2d) 608 [43 Pac. (2d) 565]; Bourne v. Bourne, 43 Cal. App. 516 [185 Pac. 489] ; Hall v. Hall, 174 Cal. 718 [164 Pac. 390].) In Smith v. Kiger the acts of the father complained of were done before her father knew that his daughter had been married. In Bourne v. Bourne, supra, the son had already been estranged by the behavior of his wife when the parents provided him with money to travel to New York. In Hall v. Hall, 174 Cal. 718 [164 Pac. 390], the wife had sold the furniture out of her home; had taken her son to another city, leaving her husband heartbroken. After some six months had passed, she was visiting her husband at the home of his parents where she caused a summons in her divorce action to be served upon him. There was no evidence of any unfriendly act done by either Mr. or Mrs. Hall calculated to entice their son from his wife prior to her action for divorce.

In view of the action of the jury upon the evidence they heard, under the correct instructions by the court, we see no reason to interfere with the verdict.

Defendant’s plea of the statute of limitations cannot be sustained. The action was filed April 13, 1938. Within the year preceding, Fleetwood had reaffirmed his vows of loyalty. From plaintiff’s marriage until Fleetwood’s final desertion of her, defendant had been persistent in his course of insulting plaintiff in the presence of Fleetwood and in much conduct calculated to separate his son from plaintiff.

In actions based upon tort the action accrues on the day of the wrongful act. When the last wrongful act was committed by defendant may be the subject of dispute, but the authorities and the record make it clear that the suit is not barred. Upon two theories it was within time: (1) If time began to run on the day the alienation was consummated, it is not barred. The “abduction” of the husband was a part of the wrong prohibited by section 49 of the Civil Code as it read at the time of the acts complained of. “Until that occurs, the statute of limitations cannot begin to run.” (Mohn v. Tingley, 191 Cal. 470 [217 Pac. 733].) , In this case the final loss of the husband’s affections was on a day subsequent to the last unfriendly act shown to have been committed by defendant, but the jury was justified in inferring that said loss was finally due to defendant’s malice towards plaintiff.

(2) In no event did it commence to run before she had knowledge of his desertion. (Mohn v. Tingley, supra.) There were no means by which she could have learned the fact till long after April 13, 1937. Prior to that date plaintiff and her husband had been living in separate establishments and in different counties. Their visits were only occasional. Either the husband visited plaintiff at her home or they met in Los Angeles. This manner of intermittent visiting is a factor to be considered in the conduct of plaintiff with reference to the application of the statute of limitations.

On January 5, 1937, her husband visited plaintiff and they cohabited in the plaintiff’s home at Ventura. On February 13th the husband wrote plaintiff a letter in which he said: “Love to both you and the baby.” On February 23, 1937, he again wrote plaintiff, saying: “Things are gradually getting ironed out down here. ... I hope that you and Jeff are making the most of this wonderful weather. . . . Write me and let me know about Jeff. Thanks for your last letter. Love. Fleetwood.” In May of 1937, within the year, plaintiff met her husband several times in Los Angeles. On May 28th she accompanied him to dinner at the Angelus Hotel and then they went for a drive. In a long conversation they discussed the reestablishment of their home. He reproached her for not having written him prior to her entrance into the hospital on the occasion of her tonsillectomy. He waxed warm in declaring his love for plaintiff; took her hand; kissed her good night several times and promised that very soon he would have a home for her. Surely she could not have known on that day that he had deserted or intended to desert her.

Her first knowledge of his desertion came on August 2,1937, when she was advised by his letter that he had secured a divorce from her in the State of Chihuahua. Prior to that letter she had no knowledge or belief that he was contemplating a separation. On that day he had already taken said Helen Kenoss as a wife, of which fact plaintiff was in utter ignorance.

Our courts have followed the rule of fixing the date from which the statute should begin to run as the date on which the wife first had knowledge of and believed that her husband had abandoned her. (Mohn v. Tingley, supra.) In Davis v. Conant, 10 Cal. App. (2d) 73 [51 Pac. (2d) 151], although defendants’ last hostile act towards the plaintiff was on December 26, 1932, the action was filed on December 29, 1933. The statute did not begin to run then because the plaintiff and her husband cohabited after January 1, 1933, showing her lack of knowledge of his purpose to desert her. The first notice by the husband of his intention to desert his wife was when he filed his suit for annulment on February 7, 1933.

Certain authorities appear at first glance to support a contrary rule, but they do not. In the case of Tofte v. Tofte, 12 Cal. App. (2d) 111, 112 [54 Pac. (2d) 1137], it is said that “the record is replete with evidence that respondent knew and believed that her husband’s affections had been stolen from her by the appellant herein as far back as 1927 ’ ’. More than one year preceding the commencement of the action, in her answer to the divorce case filed by her husband February 21, 1928, she affirmatively alleged that her husband deserted her on December 15, 1927. While her action was filed October 13, 1932, she had known that it had accrued five years before, which, of course, barred recovery.

The older case of Bouchard v. Reed, 7 Cal. App. (2d) 652 [46 Pac. (2d) 800], cited by defendant, bases its holding upon Harp v. Ferrell, 115 Cal. App. 160 [300 Pac. 978], But there is nothing in the latter ease contrary to the holding of Mohn v. Tingley and Davis v. Conant, supra. Mrs. Harp knew the exact period that the wrongful acts of defendant had continued, but because she offered no excuse for her delay in filing her action for over one year and three months after the last act complained of, she failed to toll the statute. The holding in the Bouchard case that “if a cause of action could arise in plaintiff’s favor ... it became barred one year after the last wrongful act of the defendant” was dictum. The facts had been found against the plaintiff. But an inspection of that record discloses that he offered no excuse in his pleading for his delay beyond a year after the acts complained of.

Therefore, upon either theory of calculating the running of time, plaintiff’s filing herein was timely.

The judgment is affirmed.

Wood, J., concurred.