White v. White

SiebeckeR, J.

The defendants contend that the court erroneously held that plaintiff’s husband was a proper party *543 • defendant and a party to the conspiracy for the alienation and •loss of his affection and society. Sec. 2345, Stats. (1898), -as amended by ch. 17, Laws of 1905, provides that: “She [a wife] may also bring and maintain an action in her own mame, and for her own benefit, for the alienation and the loss of the affection and society of her husband.” This statute, •which confers rights on a married woman to maintain an action in her own name as to her separate property, business, ipersonal earnings, or for any injury to her person or character as if she were sole, had been construed before the amendment to confer on her the right to maintain an action against her 'husband for violation of those rights, as she had a right against -strangers. Carney v. Gleissner, 62 Wis. 493 , 22 N. W. 735 ; Brader v. Brader, 110 Wis. 423, 426 , 85 N. W. 681 .

The question here is: Is the husband a joint tortfeasor in 'the commission of the wrong constituting the plaintiff’s cause •of action? True, he was guilty of the wrong of leaving the plaintiff in consequence of the wrongful conspiracy and of causing her the loss of his affection and society. This, how■ever, is the result of the tort alleged to have been committed by the other defendants, namely, their malicious purpose of the wilful and intentional alienation of him from her and the • causing the loss of his affection and society. The gist of the .action is the damage resulting to the plaintiff by the wrongful conduct of those who induced the alienation and the loss of !her husband’s affection and society." This is attributable to the acts and conduct of the persons who influenced the husband to yield to their wrongful purpose. Their acts in furtherance of this purpose constitute the tort for which the •resultant damages are recoverable. It cannot be said that the husband was an active participant in carrying out the objects •of the wrongful conspiracy to accomplish the alienation and the loss of the husband’s affection for his wife and the consequent loss of his society by her. The wrongdoers acted upon and through him to accomplish their illegal purpose against dhe plaintiff, and the cause of action was complete when their *544 machinations had operated to cause plaintiff the alienation and the loss of affection and society of her husband. He is-not, therefore, a joint tortfeasor with those who wrongfully brought about this state of mind, and hence he cannot be held to have joined or confederated with the other active parties in the wrong constituting the wife’s cause of action. In so far as his conduct may be violative of any marital rights of the wife, he is personally responsible to her independently of the-defendants’ wrong through which he was led to breach his-legal obligations, and the wife may seek her redress in an appropriate action against him. Erom these considerations it follows that he was not a party to the tort and hence not a proper party defendant.

It is suggested that this court passed on this question on the-former appeal of the case ( 132 Wis. 121 , 111 N. W. 1116 ) and held that the husband was a proper party defendant. This question was not presented on that appeal and is not', embraced in the decision. The complaint, considered on that appeal upon general demurrer, also contains allegations to the-effeet that Frederick II. White,, Jr., and the other defendants, after his separation from the plaintiff, had maliciously eon--spired to entice and induce her into unchaste and criminal acts to degrade and injure her for the purpose of enabling-her husband to legally separate from her. No proof was offered to sustain this allegation and it is therefore dropped from the consideration of the case on this appeal.

The court permitted plaintiff to testify to deelarations-made by her husband to her and others, which purport' to give the offers and inducements held out to him by his parents to-induce him to separate from and abandon the plaintiff. It is • claimed that this was prejudicial error. This class of evidence has been held proper and competent as showing the influences producing the alienation and the .loss of affection complained of and the cause of separation and the destruction off the marital relation. Hardwick v. Hardwick, 130 Iowa, 230 , 106 N. W. 639 ; Williams v. Williams, 20 Colo. 51 , 37 *545 Pac. 614 ; Nevins v. Nevins, 68 Kan. 410 , 75 Pac. 492 . To tlie same effect is tlie case of Horner v. Yance, 93 Wis. 352 , 67 N. W. 720 .

It is contended that the court committed prejudicial error in receiving and considering the testimony of plaintiff’s husband. An examination of his evidence shows that, though it was erroneously admitted, it could not have operated to the defendants’ prejudice, since all of the material facts to which he testified supported the defendants’ claims in the case and impeached plaintiff’s case. Under this state of his evidence no prejudicial error resulted from its admission.

The defendants assert that the evidence does not support the court’s findings to the effect that the defendants Frances L. White and Maury A. Steiuari maliciously confederated together to injure the plaintiff through the alienation and the loss of affection and the society of her husband, and that their acts and conduct caused such alienation and loss of affection and society as resulted in an abandonment and separation from her. The proof relevant and material to these findings of the court embraces nearly all of the facts and circumstances disclosed by the evidence. The evidence is in positive and direct conflict on this issue. The inferences from the evidence depend, however, upon the weight and the credibility of the different witnesses testifying in the case considered in connection with the positive testimony contained in the letters and other evidence in the case. In determining whether the defendants did maliciously conspire to' accomplish the alienation of the husband and the loss of his affection and society by the wife, the evidence should be considered in view of the rights of the parents and their obligations respecting their child’s welfare and happiness. As stated in the recent case of Jones v. Monson, 137 Wis. 478, 487 , 119 N. W. 183 :

“The true test to be applied to the evidence in this class of cases is: Were the defendants in what they did actuated with reasonable parental regard for their child, or were they actu *546 ated by unreasonable ill will towards the husband or wife, as the case may be ?”

“Acts done by a stranger might well he regarded as malicious, while similar acts by the parents would not give rise to a well-grounded suspicion of bad intention.”

It is strenuously urged that the evidence in this case fails to show that the defendants Frances L. White and Mary A. Stewa/rt maliciously confederated together for the unlawful purpose charged, and that thei’e is nothing to show that they attempted to carry out such purpose. As stated, the voluminous evidence on this issue embraces well nigh all the material facts and circumstances in the case and cannot profitably be restated here. The record contains positive evidence supporting the claim that these defendants combined and took actual steps to poison the mind of the plaintiffs husband against her and to induce him to separate from her as his wife. The circumstances of their conduct in the matter are cogent in support of this claim. True, much of the direct evidence of the defendants is a denial of any such purpose and an endeavor to explain the circumstances tending to show guilt. The court’s conclusions, however, are clearly supported by the facts and circumstances shown, if the witnesses testifying thereto are worthy of credit and belief. The conclusions of the court as to the facts must stand unless we can say from the record before us that the evidence of the witnesses in support thereof is incredible or not of sufficient weight to' warrant the court in finding these defendants guilty of the wrong alleged against them. After an attentive reading and consideration of the evidence, we cannot say that the witnesses testifying in support of the cause of action were not entitled to credit and that such evidence was insufficient in weight to sustain the findings. Upon the record it must be held that these defendants were guilty of maliciously confederating together to injure the plaintiff by effecting the alienation and the loss of affection and society of her husband.

*547 It is asserted that the award of punitory damages is illegal because they are evidently allowed and fixed at the sum awarded upon the evidence of the wealth of the defendant Frances L. White. There is nothing in the case showing that the trial court awarded the punitory damages upon this ground. The claim that punitory damages are not proper in view of the fact that one of tire defendants is without property and that another defendant is possessed of considerable means is not well founded. The cause of action arises out of the malicious conduct of the parties, and the wrongdoers can be subjected to punishment by the award of puni-tory damages therefor. We cannot say as matter of law that the trial court allowed an excessive amount of either compensatory or exemplary damages under the facts and circumstances of the case. The record presents no grounds for disturbing the judgment By the Court. — The judgment is reversed as to the defendant Frederick H. White, Jr., and the cause remanded with directions to dismiss the action as to him. The judgment is affirmed in all respects as to the other defendants.