Mallory v. Edgar

In an action brought by the husband to recover damages for alienation of affection of his wife by the defendant there was judgment for $35,000.00. The defendant took writ of error and assigned as errors, (1) the final judgment as rendered; (2) the denial of a motion for new trial. There are sixty (60) grounds of motion for new trial. One of the grounds of the motion for new trial is predicated upon the following as reflected by the bill of exceptions. During the course of the argument of the merits of the cause by counsel for the plaintiff, the following occurred:

"Mr. Botts: Not long ago Mr. Murrell got a verdict of $45,000.00 in this court in an alienation suit.

"Mr. Murrell: Explain to them that I represented the girl against her father and mother-in-law, and not a man.

"The Court: Be at ease for five minutes. (Thereupon a short recess was taken.)

"Mr. Murrell: I want to ask the Court to instruct the jury to disregard the statement about any other suit mentioned wherein a verdict of $45,000.00 was rendered, and state that such remark has nothing to do with the issues involved in this case and they should not consider such remark.

"The Court: I will deny the motion."

To which the defendant did then and there except.

"Mr. Murrell: We also renew all motions for mistrial heretofore made, on the grounds previously stated, on account of the conduct of plaintiff's counsel in said cause.

"The Court: Motion denied.

"Mr. Murrell: Exception."

Counsel for plaintiff objects "to including within the bill of exceptions as presented to the Court for authentication the above quoted remarks of counsel for plaintiff" * * * upon the ground, among others, that such quoted remarks were "only a fragmentary portion of the remarks of counsel for plaintiff in that connection, and that in making said remarks counsel for plaintiff referred specifically to the remarks of counsel for defendant, above mentioned, and stated, among other things, that Mr. Murrell did not think that alienation suits were so disgraceful and objectionable a short time ago when, not so long ago, Mr. Murrell got a verdict of $45,000.00 in this court in an alienation suit."

As the Court overruled the stated objection to the bill of exceptions, it must be assumed here that the bill of exceptions correctly states what were the facts he ruled on when he denied the motion of defendant's counsel that the Court "instruct the jury to disregard the statement about any other suit mentioned wherein a verdict of $45,000.00 was rendered, and state that such remark has nothing to do with the issues involved in this case and they should not consider such remark."

On the record here, the denial of the motion that the jury be instructed by the court to disregard the statement about any other suit mentioned wherein a verdict of $45,000.00 was rendered was error. It was irrelevant matter calculated to influence the minds of the jury at least as to the amount of damages to be awarded. See: Blackwell v. State, 76 Fla. 124, 79 Sou. Rep. 731,

1 A.L.R. 502; Seaboard Air Line Ry. Co. v. Smith, 53 Fla. 375,43 Sou. Rep. 235; Akin v. State, 86 Fla. 564, 98 Sou. Rep. 609.

In cases of this nature the courts should exert great care to exclude all irrelevant matters that might influence the jury in order that each such case be decided on its particular relevant facts and the principles and provisions of law applicable thereto.

During the progress of the trial a certain card on which was written: "Darling never forget I have loved all there is and never forget I still love you all there is. Lew." was introduced in evidence over the objection of the defendant without proof that the language used on the card was written by the defendant or by his authority. If it was written in the language used by the defendant or by and with his authority, such fact was susceptible of proof and such proof should have been required before the card should have been admitted in evidence over the objection of defendant. This is true because the value of the card as evidence lay in the character and meaning of the language used thereon.

The record presents a most amazing set of alleged facts upon which the plaintiff relied for recovery.

There is in the record evidence which tends to establish the following salient facts: Plaintiff was married to an actress known as Miss Kathryn Crawford. The marital relations were neither congenial or happy. Plaintiff was a gambler of considerable means and was connected with gambling operations. He was high tempered and impetuous. His wife was a woman of culture and refinement, possessed an untarnished character and reputation, was of a highly nervous and sensitive temperament. Edgar and his wife had many quarrels and misunderstandings. In February or March, 1935, they had an altercation in their apartment in Detroit in which Edgar beat his wife up, bruised and injured her so that she was confined in a hospital for a period of about three weeks. The result was that she then ceased to have any affection for her husband and from that time on contemplated and discussed divorcing him on account of his cruelty to her. She did, however, continue to live with him and treat him as her husband and they continued to quarrel and make life unpleasant for each other. In the winter season of 1936 Mrs. Edgar went to Miami with a young lady friend and there she, about February 29th, met Mr. Mallory, a wealthy young man against whom no previous dishonorable conduct is shown by the record. Mr. Edgar arrived in Miami about February 29th, and Mallory met him on March 2nd.

Mrs. Edgar and Mr. Mallory were thrown together in the company of mutual friends between March 1st and 3rd, when she went with her husband to Havana, Cuba, and once or twice after her return from Cuba on March 7th, and before March 12th, when she went to the hospital. The record discloses the indulgence of no misconduct on the part of either of them from the lips of any of their friends or associates.

Several employees of the hotel where Mallory lived testified that they each saw Mrs. Edgar in Mr. Mallory's bedroom at late hours of the night in compromising positions with each other, and one or two testified that they saw these parties in the act of sexual intercourse in that room, both being nude, having an electric light burning in the room on the ground floor with windows up and curtains or draperies not drawn. The testimony of these witnesses was conflicting as to what was seen and at the times when some of these witnesses purported to have observed these amours Mrs. Edgar was in Cuba with her husband. The story told by these witnesses is contrary to reason and probability. It portrays the conduct of a brazen and abandoned harlot, not that of a refined woman being seduced by an ardent lover of less than a week's acquaintance. It may be that these witnesses each thought they were respectively speaking the truth, but the admitted surrounding circumstances were such that they could have been entirely mistaken as to the identity of the woman they saw in Mallory's room. Edgar testified that by accident as it were he happened to approach outside of Mallory's room at a late hour one night, heard his wife's voice and following the sound of the voice he, too, looked through that open window and observed Mallory and Mrs. Edgar both nude on Mallory's bed, but did not make his presence known to either and did not afterwards mention the matter to either of them, although he talked to both about being in love with one another, which accusation they both denied.

After the alleged occurrence above stated, Edgar was present when his wife opened a box of flowers which Mallory had ordered sent to her. They had a quarrel about that, which was followed up by a quarrel about the possession of a key to Mrs. Edgar's automobile in which Mrs. Edgar says her husband struck her across the back in the lobby of a swanky hotel. In this she was corroborated and the result was a doctor was called and Mrs. Edgar was taken to a hospital and declared she was through with plaintiff. In the meantime, Mallory had gone to Winter Park to attend the marriage of a friend. About the time Mallory arrived in Winter Park he received a telegram reading:

"Mar. 12, 1936. "To Mr. Lew Mallory, III, "DV2 — 66 DL. "c/o L.C. McKinney, "Palmer Ave., Winter Park, Florida.

"Nothing worth while without you my Dear Stop I adore you with every fiber of my soul Stop Your flowers Darling Stop Would they could bloom forever as will the memory of the thought that prompted you to send them Stop I will pray every minute you are away that you will come back free of heart and mind Stop Such is my love for you.

"Kathryn."

Mallory testified that he knew no reason for the sending of such telegram and thought it some sort of a joke. Mrs. Edgar testified that she wrote and sent the telegram in the presence of and with the knowledge of her husband because of his conduct about the box of flowers and purely to spite him and not because of any feeling of affection for Mallory. Edgar denied that he saw the telegram written, but says he became cognizant of it by finding an unsigned copy of it in Mrs. Edgar's room after she was taken to the hospital. Shortly after Mallory received the telegram he had a phone call from Edgar. His testimony as to that and what immediately followed is:

"* * *

"Q. Will you please relate that conversation that you had with Mr. Edgar?

"A. I cannot exactly. I can tell you the gist of it.

"Q. As best as you can recall it.

"A. Well, the first thing he said was, `Is this you, Lou?'

"Q. Said what?

"A. `Is this you, Lou?' And I was rather surprised, because I had only met him once and talked to him half an hour or so, and I said, `Yes.' He said, `This is Jamie Edgar'. He said, `Kitty is in the hospital.' Well, I was shocked to hear that, and expressed my sympathy, and said I was sorry to hear that; and I asked what was wrong with her, and he said, `She is on the verge of a nervous breakdown.' So I again said something that I was sorry to hear that. And then he burst out and he said, `Are you in love with her?' And it took me so much by surprise, I could not answer for a second. He said, `If you are, I think you ought to come down here and marry her.' He said, `I will give her a divorce.' Well, I didn't know what to say. I still did not know whether it was a joke or whether he was crazy, or what was the matter; and I said, `Are you nuts?' He said, `No.' He said, `I think you ought to come down and marry the girl.' Well, I didn't know what in the world was going on, and I thought it was possibly a joke, so I said, `Well, I cannot talk to him,' and I hung up. Oh, I promised I would call him back the next morning.

"Q. You promised to call him back?" * * *

"Q. (By Mr. Murrell): Now, Mr. Mallory, will you please state what happened after that in reference to you and Mr. Edgar; did you hear from him any more, or see him?

"A. Yes, yes, I did. That night we laughed about it for a while, and the next morning, or rather I would say around noon sometime, I went across the street to the hotel, and they had a coin booth there, and I called him up, and at that time he asked me again — no, this time he said, `Won't you come down here and marry her?" And I said, `You must be crazy. I could not marry your wife. I am not in love with her, and have no intention of marrying her at all.' And I could not understand what he was talking about or getting at. By this time I realized that it was really he, and I thought he must be crazy.

"Q. You had called for him on the phone?

"A. Yes.

"Q. And you recognized the same voice as the voice who had called you the previous day?

"A. That is correct.

"Q. Then you knew it was Edgar talking?

"A. Yes.

"Q. Now, please go ahead and state.

"A. Well, he said something about, `Will you please call Kitty in the St. Francis Hospital and talk to her?' And I said, `Yes, I will be glad to, if you want me to.' And he said, `I wish you would. I wish you would call her up and talk to her.'

"Q. Did you call her?

"A. I did.

"Q. Did you talk to her?

"A. I am not sure whether I got her at that time or not. If I remember correctly, the line was busy or she was asleep or something, and I had to call back again later. So finally, at any rate, I got her on the phone, and I could scarcely hear her voice; it was very weak, and she seemed very incoherent. I could not make any sense out of what she was talking about, and right in the middle of the conversation he broke in and said, `Thanks very much for calling. I appreciate it.' And thanked me again, and then we hung up. Oh, he asked me to come down on Sunday. I told him it was impossible for me to come down on Sunday, and he said, `When you come down give me a ring at the Embassy Hotel. I would like to have you come over and talk to Kitty.'

"Q. Did you go down to Miami?

"A Yes; I come down, but I saw him before that.

"Q. Go ahead.

"A. I told him I would be glad to come down, if he was having trouble, and patch things up. So I think it was that night there was a pre-wedding party given at the Country Club up there at Winter Park, and about one o'clock in the morning the party was breaking up, and we were getting ready to leave, when the phone rang, and they called me to the telephone, and he said, `I am over at the Virginia Inn.' That is where I was staying. He said, 'I would like to talk to you. I won't bother you very long, about five minutes is all I need. Will you come over? I said, `Sure, I will be glad to come over.' So Mr. Bovaird rode over in my car, and when we got there, he was standing out in a little park with a chap whom I recognized as being an airplane pilot, whom I knew. Mr. Bovaird and Mr. O'Hara, the airplane pilot, went outside, and Mr. Edgar and I went up on the porch. There was a line of rocking chairs up there, and we sat down and he told me the same things he told me the night before, and I answered him in the same way, that we talked about on the phone. I suppose we talked about ten minutes or so, and he said, `All right. I will see you when you come down on Sunday.' And I promised I would give him a ring. I got in my car and drove away, and I presume he left, too.

"Q. Did you come to Miami?

"A. Yes, on Sunday afternoon I drove down. I think I came into Miami about 8 or 9 o'clock that night.

"Q. Sunday evening?

"A. Sunday evening, the 15th.

"Q. When you arrived here, did you see Edgar?

"A. I called him at the Embassy. I phoned, and he said, `Yes, I would like to have you go and talk to Kitty.' * * *

"Q. Then you went over and talked to Mrs. Edgar, you say?

"A. Yes.

"Q. In the presence of her sister?

"A. Well, her sister and the nurses were in and out of the room a number of times.

"Q. Did you ask her anything about this, or tell what had happened?

"A. Well, the first thing I asked was, `What does this telegram mean?' And she went on to explain to me why she had sent it, and she told me substantially that she had had some sort of trouble with her husband, and it had been going on for some time; that they had not been getting along at all, and that she was going to leave him, and that during one of their fights or arguments she wrote out this telegram and sent it to me." * * *

"Q. Then after you left the hospital what did you do?

"A. I went back over to my room and while I was there — let me get this straight — I think I stopped in the office first, and then went to my room, and Mr. Edgar called me on the telephone, and he said something like this. He said, `Did you go over and see her?' I told him I had, and he thanked me for it. And he said, `I would like to see you down here at the Embassy.' I said, `What for?' He said, `Never mind. I think you will be interested, and it will be worth your while to come down.' He said, `If anybody serves you any papers on the way down here, don't pay any attention to them.' Well, that frightened me. I did not know what was up then. Oh, yes. He mentioned, he said, `I have got an affidavit from a night watchman up there.' I said, `To what effect?' He said, `To the effect that he has been looking in the window and seen you in there with my wife in your room.' I said, `That is impossible.' He said, `Come on down here and talk.' So I went up to the pool and Mr. McGovern, the head house detective, was standing by the pool, and I asked him if any of the men had been giving any affidavits, and he said, `Absolutely not.' He called Holstrunk up there at that time. May I say what Holstrunk said?" * * *

All this was corroborated by Mr. Edgar and Mr. Edgar testified that he never mentioned to Mallory anything about having seen Mrs. Edgar in Mallory's room. Soon after Mrs. Edgar left the hospital she and Edgar resumed their marital relations and with Mrs. Edgar's sister returned to Detroit. Stopping in Jacksonville the first night out from Miami, Mr. and Mrs. Edgar slept together as husband and wife in a hotel there. After they reached Detroit Mrs. Edgar finally determined to prosecute divorce proceedings on the ground of extreme cruelty inflicted upon her by her husband. Her suit was filed and process served on the 7th day of April, 1936. Final decree granting divorce on proof of allegations of the bill of complaint was entered by the Honorable Allen Campbell, Circuit Judge, after a property settlement had been reached between the parties whereby Mrs. Edgar received $15,000.00 in cash and a note for $3,000.00.

To say the least, this was an unusual sort of settlement for a wronged and faultless husband to make with a wife known to him to have been guilty of adultery and whose alleged infidelity he intended shortly to expose in the process of a public trial in a suit against her alleged paramour.

There is evidence in the record which if believed by the jury, warrants the returning of a verdict against the defendant on the counts of the declaration charging that defendant did debauch and carnally know plaintiff's wife, but to have arrived at that conclusion in the light of all the record the credulity of the jury must have been severely strained.

The great weight, a preponderance of the evidence, shows that Mrs. Edgar had ceased to love or have any affection for plaintiff long before she met Mallory and that such condition resulted from the conduct of plaintiff toward his wife and their mutual lack of congeniality.

Upon the whole record we must hold that the verdict and judgment was grossly excessive.

The record bristles with verbal passages at arms between counsel for the respective parties which might well have influenced the jury improperly and which should neither be indulged in by attorneys in the trial of a cause nor should the indulgence therein be allowed by the trial court. Discourtesies and personal tilts between attorneys at the bar of a court should ever be studiously avoided.

For the reasons stated, the judgment is reversed and the cause remanded for a new trial.

So ordered.

ELLIS, C.J., and TERRELL, BROWN and BUFORD, J.J., concur in the reversal.

ELLIS, C.J., and BROWN, J., filed separate special concurring opinions.

Mr. Justice DAVIS had prepared a special concurring opinion, which is appended.