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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 78 Action by A.G. McKinnon against Ray R. Chenoweth to recover damages for the alienation of the affections of the plaintiff's wife. Judgment for the defendant, and the plaintiff appeals.
REVERSED. This is an action to recover damages for the alienation of the affections of the plaintiff's wife. A jury trial resulted in a verdict and judgment for the defendant, and the plaintiff has appealed.
The plaintiff, A.G. McKinnon, and his wife, Vivian were married January 29, 1939. In February, 1941, he and the defendant, Ray Chenoweth, both skilled mechanics and machine operators, formed a partnership to engage in the business of manufacturing, leasing and otherwise disposing of truck cranes of an improved type which McKinnon had perfected. The success of their venture is indicated by the fact that the net profit of the partnership before taxes for the year 1942 was $112,678.69. The partnership was dissolved early in February, 1943, at about the time of the final separation of the plaintiff and his wife.
There were several such separations. The first occurred on October 27, 1942, when Mrs. McKinnon, over *Page 79 the plaintiff's protest, left their home in Portland and went to San Francisco. He heard from her twice by mail, and on November 12 joined her in San Francisco and they were reconciled. They returned to Portland, having first agreed that later they would go back and spend some time in the Bay area, the plaintiff having business there in connection with partnership machines under lease to the Bethlehem Steel Company in Modesto. Their trip was to be in the nature of a vacation. About November 20 they went to Modesto, stayed there one night, and then rented an apartment in San Francisco. On December 12 Mrs. McKinnon ordered the plaintiff out of the apartment. He returned to Portland, and about December 18 went to Oakland. On December 24 he saw his wife in her apartment in San Francisco, and they were again reconciled and spent the night of the 25th together in the Oakland Hotel. It was agreed between them that on the following day she was to go to San Francisco and pack her belongings and they would find living quarters in Modesto. Accordingly, on the 26th, Mrs. McKinnon went to San Francisco, but, after arriving there, telephoned the plaintiff that she had changed her mind and would not go to Modesto with him. She came back to Oakland, and, at her request, the plaintiff took her to the bus depot, where they parted. Thereafter the plaintiff endeavored to find his wife. He enlisted the help of Mr. and Mrs. R.E. Steelman, the former an employe of the partnership in Modesto, and on the evening of December 27 Mrs. Steelman reached Mrs. McKinnon by telephone at her apartment in San Francisco. Thereupon the plaintiff and the Steelmans went to San Francisco and there was another reconciliation. Mrs. McKinnon then went to Modesto with the Steelmans and rented an apartment where she and her husband *Page 80 stayed until February 6, 1943. In the latter part of January the plaintiff made a trip to Portland from Modesto, saw the defendant, and on February 4 they dissolved their partnership. The plaintiff returned to Modesto on February 6, and on that day his wife left him finally, informing him that "there was another man in the picture".
On March 4, 1943, the plaintiff was served with process in a divorce suit brought by his wife; he filed a cross-complaint and was granted a divorce on May 26, 1943. In the meantime, on January 21, 1943, the defendant's wife had filed suit for divorce, and on February 2 she was granted a decree.
There is little evidence in the record of any acts of the defendant prior to the first separation of plaintiff and his wife on October 27, 1942, which were the cause of their estrangement. But evidence of the subsequent conduct of the defendant was sufficient to make a jury question. Between November 3 and December 27, while Mrs. McKinnon was in California, the defendant many times called Mrs. McKinnon by long distance telephone from Portland and engaged in conversations of considerable length. On December 12, the day on which Mrs. McKinnon ordered the plaintiff out of their San Francisco apartment, the defendant arrived in San Francisco, and, until about December 18, stayed at a hotel in Oakland. During that period the plaintiff was in Portland.
On December 25 the defendant from Los Angeles sent a telegram to the plaintiff at the Oakland Hotel in Oakland reading as follows: "Circuits busy will leave in couple days". On the same day the defendant registered under the name of L.K. Jensen at the Hotel St. Claire in San Jose, which is 363 miles north of Los *Page 81 Angeles and 48 miles south of San Francisco. He informed the hotel clerk that his wife would join him later, and, at the clerk's suggestion, added the words "and Mrs." to his registration. There is evidence to support a finding that once on December 25 and three times on December 26 and again on December 27, the defendant, under the name of Jensen, called Mrs. McKinnon's apartment in San Francisco by long distance telephone from the Hotel St. Claire. It was on December 26 that Mrs. McKinnon refused to carry out her arrangement to go to Modesto with her husband and disappeared until the evening of the 27th. The defendant testified that a woman was with him at the Hotel St. Claire in San Jose, but that it was not his wife. The plaintiff testified, without objection, that after his divorce his wife told him that she had seen the defendant at San Jose.
From the foregoing evidence the jury could have found that the defendant, intending to meet Mrs. McKinnon in San Jose, had wired the plaintiff as he did in order to deceive the plaintiff as to his movements, and that he did meet Mrs. McKinnon in San Jose and was instrumental in her failure to carry out her agreement with her husband to go to Modesto on December 26.
There is evidence that Mrs. McKinnon and the defendant agreed that he would use the name T.K. Jensen and she the name Vivian Lawson in communicating with each other and that they did so, and that during the month of January, 1943, the defendant, on numerous occasions and at considerable length, talked with Mrs. McKinnon over the long distance telephone from Portland and other points. *Page 82
It was the defendant's theory that the breach between the plaintiff and his wife was brought about by his mistreatment of her, and other misconduct, and evidence was received which would have warranted a finding that that was the controlling cause of their estrangement.
Such further statement of the evidence as may be found necessary will be made in the course of our discussion of the assignments of error.