Summerfield v. Pringle

It is an established rule in this court, that verdicts will not be disturbed where there is substantial evidence, though disputed, to support the verdict. This is upon the theory, that the jurors see and hear the witnesses testify and are in better position to determine their truthfulness and the weight to be given their evidence. It must be remembered, however, that seeing and hearing witnesses can not supply an absolute lack ofevidence. Furthermore, in determining the sufficiency of the evidence to support a verdict, it is not enough to merely accept the testimony of the successful party alone; but theundisputed and admitted facts disclosed, whether proven by theplaintiff or defendant, should be accepted and considered together by the appellate court in arriving at a conclusion as to whether the evidence as a whole supports the verdict. Surely we can not take the plaintiff's complaint and her narrativestatement and omit her admissions on cross-examination and likewise omit and disregard the admissions and undisputedtestimony of her own witnesses. Neither should we disregard the undisputed testimony produced by the adverse *Page 317 party. All admitted and undisputed testimony should be considered together.

The constitution of this state declares that "right and justice shall be administered without sale, denial, delay or prejudice." (Sec. 18, art. 1, Const.; Day v. Day, 12 Idaho 556,86 P. 531, 10 Ann. Cas. 260.) After a very careful examination of the entire record in this case, I am convinced that justice "without prejudice" has been denied appellant.

It must be remembered that this is an action for alienation of conjugal affections. The measure of damage in such case should be largely controlled, not merely by the size of the defendant's purse, but by the character and nature of the marital relation which existed and is claimed to have been disturbed or severed. The bulk of some 487 pages of this record, exclusive of 59 exhibits, is devoted to arguments and differences between mother and son over farming operations and attendant problems, rather than over his relation to his wife. In parts, the record might very well indicate to one, who did not know the nature of the pleadings, that the evidence was directed toward establishing grounds for divorce and alimony; and very little of it is devoted to the actual marital relation existing between respondent and her husband or the manner in which appellant caused any interruption or severance of the conjugal status.

When this couple were married in California (April 11, 1937) respondent, 24 years old, was engaged as a general manager of the business concern where she had been in charge of employees and operations for some four years; while young Pringle, then 27 years old, something over four years out of Stanford University, in the meanwhile had been, for four years, an apprentice in mechanical engineering with the Southern Pacific Railroad Company. His apprenticeship expired in November, 1938. His "seniority" was not such as to entitle him to continued employment by the company, which was laying off men; and he began looking for other employment. His mother (appellant), having several good farms in Twin Falls County, Idaho, young Pringle conceived the idea of going into the farming business and accordingly wrote his mother, stating his plans and wishes in that respect. The mother was a practical business woman, having been the wife of a successful farmer (deceased) and evidently well-familiar with all the details of farming in that section, and with the qualifications *Page 318 and education of her son as well, and did not think it a good idea for him to undertake farming and so informed him. She pointed out the fact that he was educated for an engineer; that he was unprepared for and unfamiliar with farming and that he was not equipped for that work. He insisted, however, on taking one of his mother's farms, his wife agreed to it and they came to Idaho and selected the farm they wanted to take and entered into a lease with his mother (appellant) for a year, on the same terms and conditions as other farms were leased to tenants, the mother telling him at the time that he should conduct the business as a tenant, in a businesslike way, on the same terms and conditions as she rented farms to others; and that if she had anything to give him, she would do so outright; and his leasehold business must be conducted on a strictly business basis.

The residence on the place Pringle and his wife selected was not in a very good state of repair. It required considerable expenditure to make it habitable. Appellant accordingly had new plastering done, hardwood (white maple) floors put down, and the rooms decorated; and when completed, the house appears to have been a very comfortable and commodious place. Appellant advanced some $4,200 for the purchase of machinery, farming implements and equipment and deposited $1200 in the bank to the credit of Pringle's personal account. This latter sum was deposited on the eve of appellant leaving for California (Dec. 20, 1938), to visit her daughter in Los Angeles, and upon her return, some two months later, she found the bank account depleted and advanced another $1,000.

Admittedly, respondent knew nothing of farming, having had no experience of any kind in that line. Realizing the inexperience of her son and his wife in reference to farming and agricultural pursuits, she frequented the place from week to week, looking over and inspecting the work and discussing with her son the things that should be and those that should not be done, a right reserved to her by the terms of the lease. Both being rather positive characters, the mother and son frequently disagreed and sometimes quarreled over whatever subject they might be discussing. The son would go home at noon or night, as the case might be, in a bad humor and evidently at times told his wife of the disputes; and she doubtless took his view, and so things drifted along without anything personal occurring other than the differences and discussions as aforementioned. *Page 319

Respondent appears to have been of a very suspicious nature and, knowing that her mother-in-law was not particularly fond of her, she thought every time the mother-in-law and son had a discussion about the farming operations or an altercation of any kind, it was about her, which the record clearly shows was not the case. In the meanwhile, respondent and her husband were, and had been ever since their marriage, having minor periodic differences and disputes over one thing and another, of a rather inconsequential nature, one of which was his complaint that she was drinking too much; that she had gone out with someone in California and that she had too much to drink and "got tight." Another was his charge that she drank too much liquor with a sheepherder in Kimberly. She admitted having a drink with the sheepherder but denied that she was drunk. Although the mother-in-law was nowhere near and apparently neither knew of nor had anything to do with these incidents, they are related at great length in detail on the witness stand, on the theory that they were corroborating circumstances of alienation of affections; all of which is too remote from the nature of this case to merit serious consideration. However, it is claimed by respondent and admitted by Pringle, that he gave her a couple "spankings" on account of her alleged escapades; and they, too, seem to be charged to appellant, although there is no word of evidence whatever to substantiate the claim. Nevertheless, it is undisputed that as soon as appellant learned that her son had struck his wife, appellant went to him and asked him for the truth about the matter and gave him a lecture over it and told him at that time: ". . . if I ever heard of him striking her again I would disown him." That account and conduct certainly can not be, by any quirk of imagination, construed into an attempt or desire to alienate the son's affections for his wife. On the contrary, it was calculated to increase his respect for his wife and remind him of his marital and honorable duty to her.

The most serious and climactic act, which is dwelt on throughout the case, occurred in the autumn of 1939, during the harvesting season of beets and potatoes. The son was taken quite ill one afternoon and appellant was called and told of the situation and asked to come out to the place. In the meanwhile a doctor was called, came and made a diagnosis of the case, and while he does not testify in the case, the nurses say he diagnosed the case as pneumonia. *Page 320 The mother came out, saw her son in bed, talked with him and, according to the nurse's testimony, she said she did not believe it was pneumonia. An argument and dispute arose between appellant and the daughter-in-law, which resulted in the mother-in-law being ordered out of the room. The incidents of that occasion, because of its being the only incident of any material consequence in considering this as analienation case, are set out at some length as follows:

Appellant described the incident thusly:

"And at that time she asked the nurse or appealed to the nurse to have me leave the room. The nurse said: 'Yes this is my patient; I will have to have quiet. If you are going to be noisy,' or something like that — I don't know just what she said, that she would have to ask us to go . . . She acted very nice; the nurse did. I turned around and I remember saying to Gertrude: 'Young lady, this is one time you have gone too far,' and I walked out. Mrs. Read followed and Gertrude and then Harold called Mrs. Read back. And I went down stairs and I think Gertrude stayed there. I think she stayed to find out what Mrs. Read had said . . . There wasn't anything spoken or a thing spoken about disinheriting him at all . . . No, the only thing I said was: 'Young lady this is one time you have gone too far. . . . the only time I ever threatened him was the time I told him if he struck her again I would disown him. I never used the word 'disinherit.' "

Respondent described it as follows:

"Well Mrs. Pringle came into the room and she told Harold that she didn't believe he had pneumonia; she just couldn't believe it . . . she told me that I had no business getting a doctor; I had no business hiring nurses; that I was entirely too extravagant with her money . . . She told my husband that if he got well he would have to leave the farm because she was not going to let me stay there any longer . . .

"Q. Did she say anything further? A. Yes, 'And if you don't get rid of her I will disinherit you.' . . . And then the nurse ordered her out of the room."

Respondent's husband related the incident in this way:

"Q. During the time that you were ill, in any of the conversations out there in which your mother — in which your mother was present, did she say anything about disinheriting you? A. No. *Page 321

"Q. Or refuse to let you stay on the place; remain there on the farm? A. She said something to that effect . . . she finally told me we would have to move that fall . . . it was the trouble with mother and I. It had nothing whatsoever to do with Gert."

Mrs. Read testified as follows:

"Q. Were you there at all the times that Mrs. Pringle was that morning in the sick room? A. Yes . . .

"Q. You heard some testimony here to the effect that Mrs. Pringle said to Harold: 'You will have to get rid of that woman or I will disinherit you, or cut you off.' . . .

"A. No, nothing like that took place.

"Q. Nothing like that was said by Mrs. P.J. Pringle at that time? A. No."

Marie Wullschleger, the nurse in charge at the time of Pringle's illness, testified:

". . . I asked Mrs. Pringle Sr. to quiet down. I said: 'This is no place for an argument and if you don't stop that argument you will have to leave the room.' . . . Mrs. Pringle Jr. said: 'If we are going to argue let's go down stairs.' Then Mrs. Pringle Sr. said: 'I want you to know I am through with you.' to Mrs. Pringle Jr. and: 'I don't ever want any more to do with you.' She started to leave the room and turned to Harold and said: 'If you don't get rid of that woman you will never get a penny of my money, because I will disinherit you.' Then they left the room."

Whatever his ailment was, he remained in the house for five days and on the 7th day was in the field directing his farming operations.

Now, assuming for our present purposes, that appellant told her son: "If you don't get rid of that woman, you will never get a penny of my money because I will disinherit you," the correctness of which assumption may well be doubted, it must be conceded that she was carrying her threat too far. She had an undoubted right to disinherit her son if she desired to do so, for any reason or no reason, but certainly had no right to make an inheritance dependent upon her son abandoning his wife. In other words, as I conceive the law to be, a parent has a right to disinherit any member of his or her family, with or without reason, but to make doing so dependent upon the breaking up of the child's family as a condition precedent, is wrongful; and if, as the result of such threat, the marital ties were broken, *Page 322 then such wrongful conduct would be actionable. However, in the consideration of such facts and the resultant severance of marital ties, there should be taken into account the fact, that the affections of a husband, who yielded to such threat, are not very stable, durable or of great value.

The contention that, as a result of this alleged threat and controversy, respondent lost a share in the prospective inheritance of her husband from appellant's estate, seems too remote and contingent and without merit. It is dependent upon too many contingent contingencies. In the first place, had they continued to live together until after the death of appellant, any estate respondent's husband might have acquired, by either will or succession, would have been his separate property. (Sec. 31-903, I.C.A., amended and sec. 31-906, repealed, '41 S.L., p. 123) in which respondent would have had no interest except as her husband might have spent it from time to time for their joint and mutual benefit; and the possibility of her husband inheriting from his mother and respondent theninheriting from her husband is too remote and contingent to merit consideration in an action of this kind. Other contingencies might well be enumerated.

Another point dwelt on by respondent is an incident wherein Pringle (the husband) blacked respondent's eye. It occurred over a gun play made by respondent at their residence. It is admitted that she got a revolver and that in the process of her husband taking the gun from her, it was discharged and the bullet went through the ceiling. She claims that she got the gun for the purpose of committing suicide and he claims that she got the gun for the purpose of shooting him and had it pointed at him.

Their respective statements, as to the occurrence of this incident, are as follows:

Respondent testified:

"Q. Now then from the time of your marriage to Harold Pringle when did you and your husband first have any difficulty or trouble? A. About a week after he had taken ill with pneumonia. He was just up.

"Q. Now then what happened at that time with respect to the presence of the defendant, Mrs. Pringle; was she there or had she been there prior thereto? A. She had been there.

"Q. And when had she been there with respect to the time of that controversy or trouble? *Page 323

"A. She had come out in the morning and she and Harold had quarreled, and after she left Harold came into the house and accused me of causing him to be disinherited.

"Q. And when did he make that accusation with respect to the time of the visit of his mother? A. Immediately after she left.

"Q. Now then just relate to the jury as near as you can remember what happened there on that occasion; what did Harold say and do? [Objection to this.)

. . . .

"A. I was about to say, that is the occasion I tried to tell you about yesterday when you objected. That took place after my husband, Harold, had had pneumonia in October . . . a morning when he had been working in the field and his mother had been out to the farm . . .

"Q. You mean that you were drunk there? A. I do not mean that.

"Q. That's all I have been asking you about; isn't it a fact on that occasion you went up stairs and got a pistol and went down and pointed it at your husband?

"A. That is not true.

"Q. And told him you were going to shoot him?

"A. That is not true.

"Q. Isn't it true that he walked up to you and grabbed your wrist and you pulled the trigger and it shot through the ceiling? A. I had the gun intending to kill myself and he grabbed the gun and it went off . . . We never kept it up stairs . . . It was in the dining room closet hanging in a shoulder holster that my husband wore. I was standing to the right of the dining room table on the right hand side of the room. About half way from the bottom of the steps to the otherend of the room . . .

"Q. And where was the closet you got the gun?

"A. It was along side of the stair case.

"Q. How far from where you were standing when the gun was discharged? A. Perhaps six feet. I am not sure about that; that's a guess."

Pringle's testimony is as follows:

". . . it wasn't long after I got sick in the fall of 1939. I come to the house and Gertie was pretty tight again. She had been drinking with a man by the name of Bell who was herding sheep . . . we had a pretty big word battle. She *Page 324 went upstairs and come down and she had the gun in her hand. I was laying on the davenport at the time. She pointed it at me and said: [swearing] 'I am going to shoot you.' I kind of talked to her. She could shoot pretty good too. I was highly uneasy. I talked to her a little bit . . . It was across two rooms; . . . As she was standing on the stairs and pointing that gun at me, she was pretty wild talking like a blue streak. And every time I could drive a word in that I thought would quiet her I did it and I kept getting closer and closer and I could see her tighten down on it, and I grabbed her hand and pushed it around and she fired the gun in the ceiling as I tried to get the gun away from her . . . some way or another she got her eye blacked in the scuffle; . . . I got the gun away from her and then she began to fight and one thing and another, claw and strike and throw things. I got tired of that right quick and I was scared anyway and I just turned her overmy knee and gave her another paddling."

While this was a proper subject for the divorce court to consider, it certainly was not chargeable to appellant. There is no shadow of evidence, that appellant induced or connived with her son to either kill, abuse, or do violence to his wife; while, on the other hand, it is undisputed that she threatened to disown her son if she ever heard of him beating or doing violence to the person of his wife. Certainly this incident could not in any manner be chargeable to appellant as anact of alienation of her son's affections for his wife.

It is inconceivable to suppose, and there is no evidence to support it, that the mother wanted to injure her son or cause his death; nevertheless, the gist of the undisputed evidence throughout is to the effect that her quarrels with her son were over his method, or lack of method, in conducting his farming operations. The wife (respondent) just didn't like the mother-in-law and the feeling was evidently mutual. They were radically unlike. No where is there a word of evidence disclosing any malice either one entertained for the other. Nowhere is there a word of evidence that appellant desired, or attempted, to injure respondent for the gratification of anger, jealousy, hatred, or revenge, or the like; and the same is true with reference to the feelings of the daughter-in-law for the mother-in-law.

Malice, in the sense in which it must occur in such a case as this, is a deliberate intention to do evil. *Page 325

"Malice: 1. A disposition or intent to injure another or others for the gratification of anger, jealousy, hatred, revenge, or the like; active malevolence.

"2. A deliberate intention to do evil with or without personal ill will." (Funk and Wagnalls Stand. Dictionary; Webster's International Dictionary; Oxford Dictionary; Klam v.Koppel, 63 Idaho 171, 118 P.2d 729, 735; Dwyer v. Libert,30 Idaho 576, 167 P. 651; Luther v. First Bank of Troy, 64 Idaho 416,133 P.2d 717.)

We find no single bit of evidence or circumstance, either proving or tending to prove, that the appellant entertained any feelings of anger, hatred or revenge against respondent; and we are certainly not permitted, under the plainest principles of law and justice, to assume that any such state of mind existed.

Dislike is one thing; malice is quite another. There is no law against one person disliking another; and entertaining or expressing dislike for another is not actionable. On the other hand, entertaining malice and carrying it into execution is actionable. "Dislike" is variously defined as "disapproval"; "contrary feeling to like or affection", "disapprobation, aversion, antipathy." (Webster's Internal. Dic., Funk Wagnalls Stand. Dic., Oxford Dictionary.)

A number of small and trivial incidents in everyday life occurring throughout a period of three or four years (as herein), when accumulated and huddled together in a single statement, may easily be magnified to appear ominous, dastardly, or unlawful, but when considered and viewed, each alone in its own proper time, place and setting, is but little, if at all, more than ordinary incident to the general common run of human life, conduct and intercourse. It is not enough to simply throw them all together and charge them up to evil or malicious design; whereas, they may more likely have arisen spontaneously out of the immediate subject then in hand and submerged as quickly.

It deserves note and mention here that, while appellant and respondent were necessarily coming in contact with each other from time to time under a kind of "armed truce," there was another mother-in-law "adding fuel to the flame." Respondent was in regular correspondence with her mother in Placerville, California, and the latter was writing quite frequently; and in her letters she was referring to appellant in many ways other than in complimentary terms, calling *Page 326 her such names as the "battle ax," "tabby," etc. Excerpts from her various letters follow:

"So C. is shopping around let her snop the battle ax";

"to bad C is so d___m nasty about her money what does she intend doing with it.

"I thought if you went back there to live you were to be Mrs. Pringle and not a slave like she said she was, just a little trick of the old girl."

"So C. is coming home I hope she stays in her own place and leaves you alone don't let her get away with anything, I wish she would take a trip around the world, and forget where she lived.

"I bet her husband had a lovely life with that old tabby . . ."

"To bad Clara makes you pay her. What does she intend to do with her money she ought to give it to you kids to start you out in life but I suppose that is the way they got it, toptinjy but it does not do them much good."

For good measure, the father dipped in a time or two and one of his letters, referring to the "mighty Pringles", said:

"It does seem strange to me that the high and mighty Pringles would allow you to be reduced to the necessity of writing to your folks for the necessities of life. It is evident to me that the Mrs. P. will not be satisfied untill you are crawling in the dirt."

This in the face of more than four thousand dollars advancements.

So, it can be seen that a general mental warfare was being waged by respondent and her parents against appellant, chiefly on the ground that they just didn't like her, the "old tabby" and to accentuate their dislike, they couldn't forget that she had money and property and was not giving it away as largely and freely as they thought she should.

That brings us to the question as to just how liberal appellant had been with her son and daughter-in-law. The exhibits in this case show that appellant drew checks in favor of her son, P.H. Pringle, in the aggregate sum of $4,665.35 between April 15, 1937 (four days after their wedding) and February 19, 1940. This sum was furnished in addition to payment by appellant for farm machinery, farming implements, tractors, a cow, and a span of horses; an amount in excess of $3,872.70. *Page 327

Thus it will be seen that appellant, in the course of two years and ten months, laid out and expended in excess of $8,538 for the maintenance of this "young couple" and to enable them to equip and carry on their farming operations. That does not read like the economy of a "stingy" miser, or heartless mother in financing a 27-year old son and wife in operating a 160-acre farm. Nevertheless, in the face of these gifts and advances, appellant was yclept by respondent's mother as a "tabby," "battle ax," and other uncomplimentary descriptives, while respondent's counsel in their brief brand her as "diabolical", with a "black and malignant heart", and as having "subjected respondent to the cruelties of a Spanish inquisition"; that she had "reared her son in a home where the almighty dollar was worshipped as God."

Conditions remain very much the same between respondent and her husband, interspersed with disagreements and broils from time to time, until May, 1940, when respondent's parents came up from California in response to her request. They came out to the farm and later went to Twin Falls. On May 25th while her husband was at work, respondent left a note for him, reading as follows:

"Dear Harold:

Please forgive me for this last thing that I've done it seems to only way for both of us.

I am inclosing the house check.

Hazel will pack for me if it is O. K. with you.

Always

Gertie",

and departed with her parents for California and never returned to her husband. The evidence is undisputed that Pringle was considerably worked up and distressed over his wife's deserting him and he made strenuous efforts to accomplish a reconciliation, as evidenced by the following communications which he addressed to her and she received at Placerville, California, only the first of which she ever answered:

Date of cancellation on envelope, June 10, 1940.

"June 9

Dear Gertie:-

I received your letter saying that you were in Placerville, I have waited before writting this letter to let you have *Page 328 time to make up your mind what you are going to do and to get settled. I never sent you the ring as I would like to give that to you personally; I have no use for it and if we can bring our business to a close without any more trouble or hard feelings I would like to give the ring myself. The chance is that you never want to see me again.

You know our business as well as I do and what property that we have; we will have to settle that. I would like to know what you think you should have. We both have had too much trouble to cause one another any more so in that case I will try to be fair with you as I know how and I trust you will do the same to me. I have tried to send you your personal things although I expect there is still some of them left here and if you will tell me what they are I will see that you get them. The quicker we can get these things settled the quicker we will be able to start life where we left off. We did not make the grade and so we both will have to find another path to lead.

I hope you do not bear me too much malice.

Yours truly

Harold"

Date of cancellation on envelope, Aug. 5, 1940.

"Sunday night

Dear Gertie:-

I wrote you a letter quite a long time ago and it was never answered or returned and I am afraid that you never received it. After all one does not live three years with another and then leave with never a word.

I do not know what you think of our separation whether you think that we could make it if we tried again or just quit as things are. In event that we let things drop here and now we should settle our business affairs. If we don't settle them it will be a source of annoyance to both of us. I looked up the devorce laws of Calif. and it will take you two years to get a devorce. One year to establish residence and one year for final papers. If you want me to go ahead I will but I will not otherwise.

I am going to leave the farm this fall as I do not have the heart to go on. It is no fun alone and all the dreams are knocked in a cocked hat. One has to work for some *Page 329 one to make it fun and so I am going to quit. I have no idea what I will do after I leave here.

I beg of you to write and at least tell me how you are.

Yours truly Harold Please write to me.

P. H. P."

Date of cancellation on envelope, September 6, 1940.

"Monday night

Dear Gertie:

I got your letter some time ago and I have been thinking about it some. I left the way open for you to ask to try and get together again but you didn't and so I have to do it myself. I didn't want to for I didn't leave you and I figured it was your place but I guess that you either have more pride than me or else you have firmly decided to to stay gone.

I will come down and talk things over as soon as I can if you will give me the opportunity and I may come anyway. I am so lonesome that I will pocket my pride and everything else that has caused trouble between us if I can bring us back together. That is coming a long way toward a settlement I think but I guess I would do most anything that you ask with a very few exceptions. If you think that there is any chance of settling our quarrel I wish you would come just a little and help me.

I think that I can get a job in Bremerton Wash. or Mare Island. If not there I can get one some place else. I think that I can support you in fair style at least. I have made many mistakes and I will try never to make them again. — Don't you think that it is worth another trial after all I think that if we get away by ourselves that things might be a great deal different. I pray it is not too late for this letter for I guess I should have ask you monthes ago. Please lets try again or at least talk it over.

Love Harold xxx (Big ones)

Please answer in a hurry — Please.

PHP" *Page 330

"Wednesday morning. Sept. 18, 1940

Dear Monk:-

I wrote you a letter sometime back trying to see if we could not get together again, but I did not get an answer either way from you so I guess that you never got the letter. I will tell you again what I said before.

I think that I will go to Bremerton Wash. when I get cleaned up here and I wish with all my heart that you would come with me. However if you would object to that place I would try to find a job elsewhere.

It has been hard a I have been so awful lonsome that I am almost nuts. I wish you would try again and I think that we could settle all of our troubles. I am asking you this because I love you and I do not want to see our home broken for any cause if I can help it. I don't suppose it looked that way to you but that is neverthe-less the case.

I will try and get away and come down and see you, however I may not be able to do it. If things work out I think that I can get away for about four or five days in which case I am coming down. For my part I think that we could still work things out and have a happy life together.

Love Harold"

It will be noted from the foregoing letters that Pringle urged and begged his wife to let him come and talk the matter over with her and that they make an effort to become reconciled to each other. He also proposed to leave Idaho and go somewhere else to set up a home and named different places where he thought he could get work. He suggested that "If we get away by ourselves, things might be a great deal different."

It seems clear from these letters, written after his wife had surreptitiously left him and while they were still husband and wife, that, if any impairment had been wrought in his affections for his wife, he still entertained conjugal affection for her and an earnest desire to take up again and continue their marital relations. Furthermore, he proposed to remove the domicile from Idaho to some place distant where they would be alone. This incident, instead of proving loss of affection for his wife, rather served to develop and demonstrate his better and more sincere *Page 331 marital affection for and devotion to his wife. It persuaded him that, even though he didn't get along with her, he couldn't get along without her.

Respondent remained adamant to these importunities, solicitations and promises and her husband accordingly, thereafter, on the 5th day of June, 1941, filed a complaint for divorce, charging desertion. October 14, 1941, respondent filed her answer and cross-complaint in the divorce action, charging her husband with cruelty and praying for a divorce; and on the same date decree was entered, granting respondent a divorce on the grounds of cruelty and approving a property settlement made by the parties.

So it can easily be seen, from these foregoing circumstances, that respondent did not value very highly the affections of her husband — not enough to accord him an interview or to discuss their differences with him, or further consider living with him. At that time it was apparent that she did not consider she was losing much when she lost her husband. She asked for thedivorce. Evidently the first realization of what she had lost was after she got her divorce and began working in a law office in Placerville, California, where in some way she conceived the idea that she had a cause of action against her quondam mother-in-law.

These recitals of evidence in the case are not made for the purpose of determining the sufficiency of the evidence to support a verdict and judgment of any amount whatever, but rather for the purpose of determining, (a) whether malice onthe part of appellant is shown and, (b) for the purpose ofdetermining whether or not this verdict is in part or whole aresult of prejudice, bias, or passion on the part of the triersof fact.

A thorough and careful consideration of the whole case convinces me that, under the evidence as it appears in the record, a verdict for $35,000 damages and $15,000 punitive damages could not have possibly been returned except and unless it was prompted, (a) by prejudice and bias against the defendant; (b) or under a misapprehension of the law as given to the jury by the court; (c) or by something that appeared or occurred extraneous to the record. In any event, the verdict is so excessive and unreasonable as to leave no room for doubt in my mind but that it was the result of prejudice, bias orpassion. *Page 332

In Luther v. First Bank of Troy, (Ida.) 133 P.2d 717, 721, we said:

"If, however, passion and prejudice evidently entered into the jury's deliberations not only as to the amount of the verdict but as to contributing to its returning any verdict at all, the verdict is vitiated and the only constitutional protection is to grant a new trial."

Thompson v. Thompson, 166 Wash. 270, 6 P.2d 617.

So far as we are advised, the verdict in this case is more excessive than anything ever approved by this court even in a death case. In Roy v. O. S. L. R. Co., 55 Idaho 404,42 P.2d 476, the jury returned a verdict of $35,000 damages and this court ordered a reduction of $10,000 and affirmed the judgment in the sum of $25,000. In a footnote to Mr. Justice Givens' opinion in that case there is set forth a very exhaustive table of amounts allowed as damages in various damage cases.

In Staab v. Rocky Mtn. Bell Tel. Co., 23 Idaho 314,129 P. 1078, the court approved a judgment in favor of the widow and three minor children, for the death of the husband, in the sum of $15,000.

In Graves v. Northern Pac. Ry. Co., 30 Idaho 542, 166 P. 571, the court approved verdicts and judgments in favor of the guardian of a minor, for the death of both the father and mother of the minor in the total sum of $12,000.

In Manion v. Waybright, 59 Idaho 642, 86 P.2d 181, the widow recovered judgment in favor of herself and minor children in the sum of $15,000, general damages, and in addition thereto funeral expenses.

In Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054, this court approved a verdict and judgment in favor of the guardian of three minor children for the death of their father, in the sum of $23,535.

In Hepp v. Ader, (Ida.) 130 P.2d 859, the court approved a verdict and judgment in favor of the husband and adult daughter in the sum of $10,525.

In Kinzell v. C. M. St. P. Ry. Co., 33 Idaho 1, 190 P. 255, this court reduced the judgment for damages from $35,000 to $25,000 and affirmed the judgment in the latter sum.

In Neil v. Idaho Wash. N. R. R., 22 Idaho 74, 103,125 P. 321, the jury awarded a verdict of $35,000 for personal injuries to a railroad conductor. This court reversed the judgment and ordered a new trial, saying: *Page 333

"The amount of the verdict is so excessive that it leads us to believe that it was rendered through prejudice and passion and without deliberation."

In Denbeigh v. O. W. R. N. Co., 23 Idaho 663, 132 P. 112, the jury rendered a verdict of $15,510 as damages for personal injury. This court reviewed the case and held the damages were excessive and ordered the judgment reduced to $11,510 and as so reduced affirmed the same.

Many other cases might be cited from this court, showing the damages awarded for major injury and death cases for much less than the verdict herein. I do not think it can be reasonably or successfully urged that respondent was entitled to recover more for the alienation of her husband's affections than she would be entitled to recover, had he met his death through the wrongful or negligent act of appellant.

The theory on which damages in this case have been claimed and apparently determined is, that if a rich man publishes and brands one as a deadbeat or a thief, others will believe the charge and the victim will be damaged in proportion to the wealth of the rich man; whereas, if the same thing be done and said by a man on relief, no substantial damage will be done because of his lack of wealth, standing and ability to respond in damages. That kind of philosophy and judge-made law has in substance received the approval of many courts, though not stated in such bald and crude terms as above. Nevertheless, however judicially and deftly stated, it seems to me not only faulty reasoning but is also downright immoral social doctrine and runs counter to every principle of equal justice to both rich and poor, great and small, as contemplated by the constitution and laws of the land.

But, in this case, the assessment of compensatory damages does not stop at mulcting appellant $35,000 for alleged misconduct based on her financial worth or rating but goes still another step in vengeance and penalizes her in thefurther sum of "$15,000 punitive damages," heaping onepresumption upon another. The latter appears to have been done on the theory that some kind of public policy has been violated by appellant, for which the state has no law to punish; and that, therefore, the injured party may not only recover "actual damages" but may also collect any exemplary penalty the jury may see fit to assess, based on the wealth or financial worthof the defendant. In other words, *Page 334 the jury has assessed what is designated "actual damages, $35,000", on the basis in part or wholly of appellant's wealth and then proceeded to tack on the modest sum of "$15,000 punitive damages" as a penalty for having been industrious, economical and business-like and refusing to pour a constant stream of money into the hands of her son and his wife.

It seems clear to me that the conclusion reached by the majority of this court, in reducing the verdict and judgment from $50,000 to $21,000, is conclusive proof that the majority think the evidence does not support the verdict for any part of the excess of $29,000. That leads to the quaere: Why did the jury return a $50,000 verdict when the evidence only supports or justifies a $21,000 verdict? The answer seems obvious, that there was $29,000 worth of prejudice, bias, passion, or misapprehension of the court's instructions, included in a $50,000 verdict. If the overwhelming majority of the verdict was the result of prejudice, bias or passion, who can say that a jury, freed of such prejudice, bias or passion, would not have accepted and believed the evidence produced by appellant and returned a verdict in her favor?

In considering this aspect of the case, it should be remembered that the majority hold that no error was committed in course of the trial or the giving of instructions; and consequently the jury was not mislead by anything that occurred in course of the trial. If this be correct, as held by the majority, then what caused them to render a verdict 58% wrong (too much) and 42% right? The obvious answer again is: prejudice, bias, or passion. $29,000 worth of prejudice is a good deal for one litigant to suffer in a single case in a forum of justice.

Cases from other states, fixing the amount of damages in alienation cases, are of very little benefit to us here, due to the divergent facts and rules of practice in different states. For instance, in the Washington practice, punitive damages are not allowable. (Phillips v. Thomas, 70 Wash. 533, 127. P. 97, Ann Cas. 1914B 800 and note, 42 L.R.A., N.S., 582.) The annotation to the latter case also shows a great number of judgments that have been allowed by different courts in such cases.

As said by Justice Deemer, in Warren v. Graham, 174 Iowa 162,156 N.W. 323, 326: "Precedents are of little value *Page 335 here, for each action is dependent on its own peculiar facts." See also, Heisler v. Heisler, (Iowa) 127 N.W. 823, 826.

In the latter case, the supreme court seems to have considered that the jury misappraised the value of plaintiff's evidence and accordingly remanded the case with instructions to grant a new trial, unless the plaintiff waived all in excess of $5,000, the court saying:

"A man who, instead of resenting unfounded, insinuations against his wife, even when made by his mother, will hie himself to the hay mow to weep, and then abuse her, whom he has promised to protect, is hardly worth quarreling over."

In Jones v. Jones, 96 Wash. 172, 164 P. 757, cited by the majority opinion, the jury returned a verdict for $25,000 and motion for new trial was made and granted by the trial court, providing that if the plaintiff elected to accept judgment for $12,500, the verdict might stand for that sum. Plaintiff elected to accept the modified judgment and defendant appealed. The judgment was affirmed.

In Thompson v. Thompson, also a Washington case,6 P.2d 617, the judgment was reversed and the cause remanded "with direction to grant the appellant's motion for a new trial unless the respondent, within ten days . . . elects to accept the sum of $2,500, including costs."

The court there quoted from Phillips v. Thomas, supra, and said:

". . . a verdict should not be permitted to stand where the facts and circumstances show it to be the result of passion andprejudice." (Italics mine.)

In Marckwardt v. Hayworth, 127 Cal. App. 738, 16 P.2d 328, decided by the District Court of Appeals of California, a verdict was rendered for $15,000; defendant moved for a new trial. The trial court granted a new trial, providing, however, that the motion would be denied, if the plaintiff filed an acceptance of judgment for $7,500. The court of appeals affirmed the judgment.

Substantially the same practice and procedure was had in the case of Fitzpatrick v. Clark, 26 Cal. App. 2d 710,80 P.2d 183, decided by the California Dist. Court of Appeals.

Other cases cited by the majority opinion, in support of reduction of verdict, are substantially to the same effect as above pointed out and afford no precedent to be followed *Page 336 in this case, especially in the light of our own cases cited, supra.

In view of the whole record, I am satisfied that the verdict is so tainted with prejudice and bias that it should not be allowed to stand. The judgment should be reversed and a new trial ordered. Furthermore, I think there is nothing in this record that justifies punitive damage in any sum.