Bourne v. Bourne , 43 Cal. App. 516 ( 1919 )

I regret most sincerely my inability to secure the approval of my own conscience, which is absolutely necessary, in order to agree with my sincere, able, and distinguished associates in their conclusion as expressed in the foregoing opinion. I therefore dissent.

In view of what appears to me the importance of this case, coupled with the fact that this presents our first disagreement, I submit the case as I see it, rather than, as is customary, to discuss only the points upon which we disagree.

Plaintiff, in her amended complaint, alleges the activity of both defendants — her husband's father and mother — and their maliciousness in bringing about the alienation of affections and resultant desertion. Defendants, by their answer, deny "that they have had anything whatever to do with the depriving of plaintiff of the attention or support or comfort or society or the aid or assistance of her husband in any manner whatever."

The record here discloses, among other matters, the following facts: That plaintiff married Ralph Bourne on May 20, 1913, when she was eighteen and Ralph twenty-one years of age; that Ralph loved her when he married her, and continued to so love her at all times up to a date approximately that of the desertion, to wit, July 10, 1915; and that she was a devoted and loving wife. That on the date last mentioned Ralph told his wife he was going to work, and directed her to go to Los Angeles, borrow enough money from her sister to purchase a pair of shoes and some theater tickets, and meet him at 6:30 P. M. at the Hayward Hotel, in Los Angeles; that plaintiff did as directed; that shortly after plaintiff left home to carry out the plan as above stated Ralph and his father, Harry S. Bourne, drove up in the defendants' automobile to within one block of the apartment house in which Ralph Bourne and his wife were living, stopping in the rear of the apartment house, and Ralph, alighting from the automobile, went into his apartment, carrying a valise which had been furnished for that occasion by his parents; that he there encountered his mother-in-law, to whom he misstated his errand, and then proceeded to change his clothes; that he at that time left for his wife a certain "note," which, in words and figures, is as follows:

"July 10th, 1915.

"I simple am sick and tired of this life, so am leaving for good. I am taking the silver, and consider this a fair division, as you have your ring, and a couple of hundred dollars' worth of furniture.

"RALPH.

"P. S. — Don't blame my folks, as they are ignorant of my whereabouts."

On the back of this note appeared the following memorandum: "Silver, blue suit, shoes, collars, razor and strop, tooth brush, brushes, underclothes, jack bowl." The articles last enumerated, and which he took away with him, had been given to Ralph and his wife as wedding presents. Having effected his "fair division," he returned to his waiting automobile, had lunch with his parents, and later in the day left Los Angeles for New York, his parents having furnished him the necessary railroad and Pullman tickets, together with sufficient cash to pay expenses. The plan to thus desert his wife was known by his parents as early, at least, as the 7th or 8th of July; but, notwithstanding this fact, it was kept an absolute secret from the plaintiff and her mother until after the foregoing was consummated. At the appointed time plaintiff was at the Hayward Hotel, carrying out her part of the plan implicitly, as directed by her husband; but he did not meet her. Instead, he was aboard a fast-moving train, traveling away from her as fast as steam could take him. Neither defendants did anything to communicate the fact of his departure to his wife. The defendant Hope Bourne was asked: "And did you notify her on the next morning after the desertion as to where Ralph had gone or why he had gone?" to which question she made the following answer: "Why should I? Why didn't Marie come to see me? I would have been glad to have seen her." It will be observed that this was not an answer, but an evasion of the question. And again she was asked: "And you never made any effort to see what was becoming of her after her husband left her in this manner?" and the following was her answer thereto: "I guess Marie is capable of taking care of herself."

One hundred and eighty pages of a two hundred and sixty page opening brief is directed by appellants to the discussion of the insufficiency of the evidence to support the verdict. Many points are urged for a reversal. I shall discuss only those which I deem essential for my present purpose.

The verdict is attacked as unsupported by the evidence. I am satisfied from an examination of the record that there was sufficient evidence — although not as weighty as might be desired — to justify the verdict, and hence to support the judgment; and this even though we disregard the declarations of the husband to his wife, without the presence of the parents. In discussing the sufficiency of the evidence, appellants urge that the court erred in permitting plaintiff to state, over defendants' objection, declarations claimed by Ralph to have been made by his parents to him concerning his wife, etc., in an effort to induce him to leave her, and which declarations were made to the wife out of the presence of the defendants or either of them, the objection being general in its terms, and on the additional ground that it was hearsay as to these defendants. The learned trial judge, in referring to these declarations and in overruling the objection, said: "Of course, it is undoubtedly the rule that they are incompetent for the purpose of proving the existence of any fact which is included in those declarations, and the jury should be so instructed; but I take it, from the authority quoted by Mr. Ashburn and from consideration, that the general rule that, where the state of mind of the husband of the plaintiff be one of the things in issue, any declarations of his are verbal acts in so far as they tend to show that state of mind, and it is admissible for that purpose, and that purpose only." Right there and then the court admonished the jury accordingly; and with this view of the trial court I agree. (Cripe v. Cripe, 170 Cal. 91, [148 P. 520].) The same is true as to the evidence of Ralph as to what he told his wife he thought his father was worth. It was offered and received for the limited purpose of showing the state of Ralph's mind. It is the usual rule that, where testimony such as is now under discussion is sought to be introduced, to explain the purpose for which it is offered, and thus make it permissible for a limited purpose only; and, as we have already seen, this was done in the present case, and the trial judge, with great care and skill, and that no confusion might result therefrom, admonished the jury, as we have already seen. "It is a well-established rule that if evidence is properly admissible upon the issues presented, it cannot be excluded because it may have ulterior or collateral effects detrimental to one of the parties." (Vallejo etc. R. Co. v.Reed Orchard Co., 169 Cal. 562, [147 P. 238], and cases there cited.) In view of the fact that the evidence objected to was competent for the purpose for which it was received, I fail to bring myself to the place where I must conclude that the jury willfully disregarded the court's instructions and admonitions in this respect. If any construction which the jury might have placed upon such evidence, concededly properly received for the stated limited purpose, be inimical to defendants' interests, that fact is not due to the jury or to the court, but to the state of the rules of evidence as they existed at the time of the trial. So believing, I doubt the power of this court on appeal to disturb the verdict.

I believe the case of Cripe v. Cripe, supra, decisive of this phase of the case, notwithstanding that at first blush it would appear that the case of Barlow v. Barnes, 172 Cal. 98, [155 P. 457] — a later case — would seem to be in conflict therewith. This, I think, is more apparent than real. Respondent's argument here appeals to me. When considered in all its aspects, I think it not in conflict with the Cripe case, for a different point is decided. In the Cripe case it was held that, "in an action for alienating the affections of a husband or wife, the state of the feelings of such husband or wife is material." In the Barnes case the court held that the guilt of the defendant cannot be proved by declarations of the alienated spouse as to the acts or statements of defendant. From the language of the court, I cannot conclude that it intended to go any further than that or to announce a rule contrary to that applied in the Cripe case. In the Barnes case there were two alleged causes of action — one for alienation of the wife's affections and the other for damages for alleged criminal intercourse with the wife. When the letters in that case, objections to the introduction of which were sustained by the court, were sought to be introduced, there was no statement or explanation made to the court that they were offered for any limited purpose; and, so far as that case was concerned, such limited purpose would appear to have been to show a state ofmind or feelings on the part of the alleged alienated spouse at the time the said letters were written, and thus to support the first cause of action, and in the absence of such explanation their reception might reasonably have led the jury to consider them in connection with the second alleged cause of action. In my opinion, the ruling of the trial court, under the facts as there presented, was absolutely correct. In the Cripe case, as in the case at bar, the offer of the letters and the declarations was accompanied by such explanation, the court, in overruling the objections in this case, so stating, and at the same time admonishing the jury as already indicated. Indeed, in the Barnes case, as one of the several propositions advanced, it was argued to the trial court by counsel for appellant "that they [the letters] were material to the issues under both causes alleged is apparent from the language of the letters, showing that her affections were alienated from her husband to and by the defendant beyond all question, and tend to show criminal conversation." And again: "We think that they are both competent to show that the poison is there and that the defendant and his wife were parties to the wrong and still burning in their lust." Under this attitude, the correctness of the court's ruling in that case I think not debatable.

One other point in the Barnes case needs consideration. The supreme court in that case used the following language: "They [the letters] were not admissible under section 1881 of the Code of Civil Procedure," and cites, among others, the case ofHumphrey v. Pope, 1 Cal.App. 374, [82 P. 223], decided July 25, 1905, and at a time when that section did not contain its present exception permitting a husband or wife to testify in such a case as the one at bar. The Barnes case was decided by the supreme court on February 10, 1916. The section referred to was amended, as indicated, in 1911. It is apparent, therefore, that the Cripe decision, as well as the fact that section 1881 of the Code of Civil Procedure had been so amended, was not called to that court's attention, as the court uses the specific language last above quoted, and follows the Humphrey case. In view, therefore, of the exact question which was presented to the court in the Barnes case for its decision, and confronted, as we are, with the array of facts just referred to, there is, I think, no warrant for construing that decision as in conflict with the Cripe case on the point involved and now under discussion in the case at bar. This construction is in line, in my opinion, not only with the doctrine laid down by our own supreme court, but with what seems to me the overwhelming weight of authority of this question.

Certain instructions given by the court to the jury are objected to by appellants here. "If all the instructions taken together, and not being inconsistent with each other or confusing, give to the jury a fair and just notion of the law upon the point to which they are addressed, it is sufficient." (Weaver v. Carter, 28 Cal.App. 241, [152 P. 323]; Hamlin v.Pacific Elec. Ry. Co., 150 Cal. 776, [89 P. 1109]; Taylor v.Pacific Elec. Ry. Co., 172 Cal. 638, [158 P. 119];Parkin v. Grayson-Owen Co., 25 Cal.App. 269, [143 P. 257].) Speaking generally, I think the instructions given by the court, and particularly including those to which appellants object, ample, and as favorable to appellants as they properly could be on the questions presented. Especially is this true when the instructions objected to are considered in connection with and in the light of the other instructions given. For instance, appellants object to the following instruction given by the court to the jury: "If you should find from the evidence that the defendants, or either of them, willfully and materially enticed or induced the husband to desert and abandon the plaintiff, then you will be justified in allowing damages to plaintiff for the sake of example and by way of punishment of said defendants, or either of them, in addition to her actual damages, as to which you have already been instructed, provided the total amount shall not exceed the sum of fifty thousand dollars," on the ground that the complaint contains no prayer for punitive damages, and, hence, because of absence of any specific mention of exemplary damages in the complaint, was unwarranted. An examination of the record here discloses no evidence that an instruction on punitive damages was requested by the appealing defendants. On the contrary, it affirmatively appears, in my judgment, that the contention which is now urged by appellants is that that species of malice which was defined by the court as malice in law will not warrant an award of exemplary damages. This seems to be the first time and place that this point is raised by them. The record shows that appellants insisted all through the trial that plaintiff could not establish a right to compensatory damages except by proof of the existence on the part of the defendants of a spiteful and rancorous disposition toward the plaintiff, and that no award of punitive damages could be made in any event. No distinction was pointed out between the two. The point urged here, therefore, as is now for the first time obvious, is that the court failed to recognize this distinction. This, I think, is now unavailing to them. The rule is that a party who desires instructions to be more specific, or to incorporate distinctions not contained therein, should request such instructions or be foreclosed from complaining if he fails so to do. (Henderson v. Los Angeles Traction Co., 150 Cal. 689, [89 P. 976]; Liebrandt v. Sorg, 133 Cal. 571, [65 P. 1098];Scott v. Wood, 81 Cal. 398, [22 P. 871]; Viera v.Atchison etc. Ry. Co., 10 Cal.App. 267, [101 P. 690]; Weaver v. Carter, supra; Hardy v. Schirmer, 163 Cal. 272, [124 P. 993].)

Appellants call attention to the cases of Hall v. Hall,174 Cal. 718, [164 P. 390], and Van Tassell v. Heidt, 33 Cal.App. 234, [164 P. 817], both having been decided since the opening brief herein was filed. In my opinion, neither of these is controlling, under the facts disclosed here. In the latter case the following is gathered from the opinion of the court: That the plaintiff brought an action against the parents of a young woman for having alienated from his wife, the plaintiff, her husband's affections. This husband had illicitly sought the regard of the young woman, but there was no sufficient evidence to support the findings and judgment against defendants. In the Hall case, an examination of the opinion will, I think, disclose that there was in fact no evidence to show an attempt to alienate the husband's affections. Indeed, there is a positive showing that if any such attempts had been made by them, they had wholly failed. Further, the facts disclosed by the record show that the wife in that case was the malefactor, and that she was the one who had herself abandoned her husband. She was strong on profession, but mighty short on redemption. She was very much concerned about attending "a meeting of the Young Women's Christian Association," but not much interested in applying to her daily walk and conversation the wonderful principles taught by that great, benevolent, and helpful institution. I think the court had ample basis for its statement when, in referring to the case, it said that "its evidentiary foundation is airy nothingness, not even the baseless fabric of a vision."

In the case at bar the conditions, I think, are just as much the other way. The love and affection of the husband for his wife, as disclosed by the record, continued almost, if not quite, to the date of the desertion, and the record, disregarding the statements of the young husband entirely as hearsay, contains evidence of defendants' duplicity — as I read it — the details of which need not be recited here. There is no doubt but that the rule is that the decisions require a much stronger case to be made where the defendants are, as here, the parents of the alleged alienated spouse — as is held in Cripe v. Cripe, supra, and cases there cited; but in the case at bar, in my opinion, this requirement has been fully met.

The point is made that the verdict is excessive. With this view, also, I do not agree. If the defendants wanted the verdict to sever the punitive damages, if any were awarded — as may have been possible under the court's instructions — from the compensatory damages, they should have asked for such severance; but they are now estopped for having failed so to do. (Davis v. Hearst, 160 Cal. 143, [116 P. 530].) I am not able to conclude from the record here that the verdict is "so plainly and outrageously excessive as to suggest, at the first blush, passion or prejudice or corruption on the part of the jury." (Hale v. San Bernardino etc. Co., 156 Cal. 713, [106 P. 83]; Nolen v. Engstrum Co., 175 Cal. 464, [166 P. 346].) Damages for alienation of affections in such a case as the one at bar include the loss of aid, support, protection, comfort, and society of the husband, together with compensation for the humiliation and suffering inflicted upon the deserted wife. (Sutherland on Damages, 4th ed., sec. 1285.) It has been held that the recovery may include such elements as loss of support, and also mental anguish and disgrace. (Nevins v. Nevins,68 Kan. 410, [75 P. 493]; Dunham v. McMichael, 214 Pa. St. 485, [63 A. 1007]; Nichols v. Nichols, 147 Mo. 387, [48 S.W. 947]; Stanley v. Stanley, 32 Wn. 489, [73 P. 596].) On principle, I am unable to see why there is not a much wider field for legitimate expression in such a case as this than in an action for wrongful death of a husband, for the reason (1) that in a case like the one at bar, the jury has the right to impose punitive damages, and (2) to make awards by way of solicitation for injured feelings — which concededly cannot be done in case of death — while it does embrace the same elements as in death. Judgments as large, and even larger than the one here involved, have been sustained in cases similar to the case at bar. (Gross v. Gross, 70 W. Va. 317, [73 S.E. 961] — twelve thousand five hundred dollars; Lockwood v. Lockwood,67 Minn. 476, [70 N.W. 784] — fifteen thousand dollars;Williams v. Williams, 20 Colo. 51, [37 P. 614] — twelve thousand five hundred dollars; Hendrick v. Bigger, 151 App. Div. 522, [136 N.Y. Supp. 306] — thirty thousand dollars;Speck v. Gray, 14 Wn. 589, [45 P. 143] — fifteen thousand dollars; Waldron v. Waldron (C. C.), 45 Fed. 317 — seventeen thousand five hundred dollars; Williamson v. Osenton, 220 Fed. 653, [136 C.C.A. 261] — thirty-five thousand dollars.) As a matter of fact, the injuries to a good wife, whose husband, theretofore loving, kind, and faithful, has been alienated from her, is, in my opinion, more serious than that of a wife whose husband has been negligently killed. In case of death she has no humiliation, no feeling of disgrace, no injured feeling; while in a case like this, she not only has all these, but in addition thereto is sometimes subjected to suspicion and humiliation in the eyes of her friends, together with the added feeling of shame that her husband has sold her for "a mess of pottage," and has shown himself to be "yellow" through and through; all of which, to a woman who loves her husband, is far worse than to have him removed by death.

Appellants argue that if this judgment is upheld and they are called upon to pay the same, that it means the annihilation of their meager fortune at a time in life when a new start is fraught with unpromising prospects. It is to be regretted that due consideration was not given to this phase of the question by defendants before the perpetration by them of the acts disclosed by the evidence here. It is, indeed, too true that "the way of the transgressor is hard." Helen Bosanquet, in referring to "the family," said: "It is greater than love itself, for it includes, ennobles, makes permanent, all that is best in love. The pain of life is hallowed by it, the drudgery sweetened, its pleasures consecrated. It is the great trysting place of the generations, where past and future flash into the reality of the present. It is the great storehouse in which the hardly earned treasures of the past, the inheritance of spirit and character of our ancestors, are guarded and preserved for our descendants. And it is the great discipline through which each generation learns anew the lessons of citizenship, that no man can live for himself alone." The record here discloses beyond question, I think, that by the saying and doing of those things said and done, these defendants transgressed even that great solicitude which the law entertains in behalf of parents when it requires a stronger case to be made against them than is necessary to be made against a stranger, and rendered highly improbable, if at all possible, the erection, not to say the maintenance, of such a home by the husband and wife here involved.

My associates refer to the "note" left by Ralph. There was conflict in the evidence on that point. The jury resolved that conflict in favor of the plaintiff. Confronted by this fact, I fail to understand the authority of this court to interfere with the conclusion of the jury.

Reference is also made to the fact that respondent's counsel argues to this court — although not suggested in the court below — that the declarations of the husband of plaintiff to her, without the presence of the elder Mr. and Mrs. Bourne, emphasize their force as a determinative influence in the minds of the jury, etc. I think this argument of counsel unnecessary. If it be a fact, it is not so because of counsel, jury or judge, as heretofore stated.

If it be a fact that the elder Mr. and Mrs. Bourne did in fact endeavor to get their son away from his wife, then those of us who have had experience in the trial of such cases know how stealthily the disintegrating work is done and what subterfuges are resorted to. It is not the usual thing to have the strongest kind of evidence. It is well known that the sulky mood, the insolent look, the gloomy manner, etc., of the person guilty of such conduct often means as much, and sometimes more, than the overt acts or statements. That such a condition existed in the case at bar is, I think, not an unfair inference from this record. I am not unmindful of the fact that the law is very solicitous for the parents in such a case as this, and that it encourages keeping "the light in the window" for the return of the erring son or daughter. Yet this solicitude does not go so far as to countenance the willful breaking of a lamp burning in another's window that the erring child may see the light in his or her parent's window more clearly. Nor am I unmindful of the fact that sometimes in such cases as the one at bar the plaintiff is an adventuress, pure and simple, seeking, as it were, whomsoever she might devour. In this case I see nothing that even points to such a conclusion. There is, in my opinion, no evidence in this record to impugn plaintiff's motives or good faith.

That the family, as such, is the basis and the unit of society, is, perhaps, no longer questioned; that it is the foundation upon which our civilization rests is no longer debatable. That whatever undermines the integrity of the home will eventually produce the downfall of that social and political institution which we call government, is now quite generally conceded. That there is becoming more apparent each year evidences which point unerringly, it would seem, to the growing instability of the family, I think, cannot be denied. That it is challenging the attention and the serious consideration of thinking men and women the world over is no longer a secret. The problem of the family, as I see it, is indeed the problem of the human race. The family is the most important fundamental institution of humanity. It is the great conserving agency in human society, preserving and transmitting from generation to generation both the material and spiritual possessions of the race. And yet our politicians, even our statesmen, so frequently occupied with questions of party interests, it would seem, have failed to proclaim, indeed, perhaps, to notice, the significance of the position. Shall the courts be also weighed in the balance and found wanting? God forbid! Probably no branch of our government comes into closer contact with this sacred institution — the family — than the courts. As such they have never yet failed in protecting the rights of the downtrodden and the oppressed. They insist upon the equal rights of all. They have been called, and they really are, the bulwarks of our liberties. Capital and labor both come to them; and they do not come in vain — unless with unclean hands. They will not fail to protect this greatest of all human institutions.

Marriage, by its nature, establishes social relations; hence, society is regarded as a third party thereto. This is the basis upon which the state erects its authority to define the qualifications of the persons who marry, the terms, rights, and obligations of the marriage contract, and for what causes and in what manner it may be terminated. The interest of corporate society in the institution of marriage increases in proportion as it is realized how deeply the welfare of the social organism is affected by the uniting of individuals in family relations. Whenever the fundamental importance of marriage to society as a whole is adequately recognized, there is no disposition to rail against the increasing tendency of the state to exercise the most careful surveillance over its procedure, and it becomes that our modern social development demands that in the absence of that paternal authority which characterized the colonial period of our history, the state itself should exercise a control as nearly approximating it as possible.

While this is not an action for divorce, still, while discussing the present instability of the family, and in this way supporting my argument here for the faith that I have in my conclusion in the case at bar, will it be out of place to suggest that probably nowhere is this instability so much in evidence as in the divorce courts? If I am correct in this, then whose duty is it to call to the attention of the people generally — whose servants the courts are — the terrible moral cancer gnawing at the vitals of this institution and eventually striking at its very base? Our government, in its 1910 census, disclosed the fact that for every twelve marriages solemnized one was dissolved by the surgery of divorce; while in its report on marriage and divorce for 1916, the ratio was one to nine — an increase of twenty-five per cent in six years! According to the report last referred to, it is disclosed that the ratio of divorces to the marriages solemnized was one to every one and one-half for Nevada and one to every two and one-half for Oregon; while it is one for every five and one-half for our own state. For more than fifty years divorces have steadily increased three times as fast as the population. Between the years 1870 and 1916, both years inclusive, according to our own government reports, the number of divorces per one hundred thousand of the population was as follows: 1870, 28; 1880, 39; 1890, 53; 1900, 73; 1906, 84, and for 1916 it had gone to 112. In less, therefore, than fifty years this evidence of the instability of the family and the existence of this moral cancer on the body of society has increased, per one hundred thousand of our population, from 28 to 112, or exactly four hundred per cent. The relation of such facts in connection with a case like this may subject the author to the charge of being sensational; but he answers that the only sensational thing about it is the fact itself. It may subject him to the charge of having had something to do with turning on the light, but, under God, he is not responsible for what that light reveals.

Is not this condition destructive of the family and does it not strike at the very foundation upon which our government stands? Is it not true that the nation whose family life decays, rots at the core and dries up the springs of all social and civic virtues? Is it not un-American and erroneous to suggest that courts should ignore such facts when considering such cases as the one at bar? Is it not a matter of common knowledge among mature men and women that there is no time in the world when young people should not be interfered with in their domestic affairs like the first two or three years while they are adjusting themselves to each other? If these questions are not impertinent or irrelevant, then it seems to me inevitable that if there wasany competent evidence to support the verdict, that it should remain undisturbed, not only because of the interests of the parties directly involved, but also on the ground of public policy. I think there is sufficient evidence to support the verdict.

As I see it, anything that in any way — even though that be an overzealous father or mother, or both — injures, or even tends to injure or undermine the family, is inimical to the institutions of our country and the best traditions of our people. It requires no "wise men from the East," nor those with prophetic vision, to see that, if persisted in, it is no long road that must be traveled until governments themselves fall and our vaunted civilization passes into history.

When, therefore, we are confronted with a condition of such vital public importance as disclosed by the statistics referred to, coupled with evidence such as disclosed by the record here, and the fact that awards larger than the one here involved have been sustained in this state for negligent death alone, as evidenced by the following cases: Hale v. San Bernardino etc.Co., supra, where the award was twelve thousand dollars, andMcGrory v. Pacific Electric Ry. Co., 22 Cal.App. 671, [136 P. 303], where the award was twenty thousand dollars, I do not feel, in the face of the record here, that we should disturb the verdict of the jury or the order denying defendants' motion for a new trial, which was the conclusion of the learned trial judge, who appears to have been extremely careful and who has conducted himself on the trial of this case in such a way as to be worthy of emulation by every trial judge in the land.

I think the appeal from the order denying defendants' motion for a new trial should be dismissed and the judgment appealed from affirmed.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 9, 1919.

All the Justices concurred, except Melvin, J., who was absent.