This is an appeal from a fifteen-thousand-dollar judgment for plaintiff in a suit based on two causes of action, one for alienation of affections, the other for criminal conversation.
Respondent married his wife, Charlotte, in 1938. She bore him two children and was a good wife and mother. In May, 1944, he moved his family to a home on Marshall street in Spokane and the following month entered the navy.
In February, 1945, she moved to a house on Mission street, where she and the children lived with her sister's mother-in-law and her sister's two children. The Mission street residence was fifty feet from appellant's pharmacy.
She permitted appellant to take her home two or three nights a week as late as three a.m., permitted him to come into her home at that hour, and permitted him to use the family car.
Respondent returned from overseas in February, 1946, and moved his family back to the Marshall street residence. He discovered that she was not pleased by his return, but they continued to live together and, in April, 1946, moved to a home on Farr road, four and a half miles from the pharmacy.
Her indifferent attitude toward him grew into open hostility during the year they lived on Farr road. She denied him his marital prerogatives, was indifferent in performing her duties as mother and housekeeper, and repeatedly told him that if he did not like her behavior he could take the children and leave. When, eventually, he accused her of consorting with another man, she admitted it but would not reveal his identity.
After his return from the service, respondent worked long hours establishing his new business, a service station. He seldom returned home prior to nine p.m., a fact known to appellant.
During the year that they lived on Farr road, she and appellant established a pattern of behavior that attracted the attention of neighbors and of the young women who cared for the children. They would arrive at the Lankford home shortly after five p.m. two or three times a week in a red pick-up truck driven by appellant. They would enter the house together, always leaving the children outside, and
In April, 1947, at her insistence and with appellant's help, respondent removed the family to the Marshall street residence once more. They lived together there until October 21, 1947, and the behavior of the parties continued unchanged.
After she commenced to work for appellant, she was friendly with other young men who came to the pharmacy, which was a neighborhood gathering place. Several of appellant's employees or friends frequently escorted her home. One of them claimed to have had improper relations with her during this period. She evidenced no lasting affection for any of these others but consistently and affectionately consorted daily with appellant from the middle of 1944 until the so-called October 21st episode in 1947.
This occurred when respondent unexpectedly returned to his Marshall street residence at two p.m. and found Charlotte and appellant alone together in the house under circumstances clearly indicating adultery. Within a few moments, respondent packed his effects and moved out, taking the children with him. The familiar red pick-up truck was parked in front of the Marshall street residence all night October 21-22, 1947.
Subsequently, respondent obtained a divorce and custody of the children. The divorce complaint allegations are brought into issue here for the reason that they alleged her relations with other men. The jury was entitled to find that this was not an admission by respondent that appellant was not the person who had alienated his wife's affections, since it appears that, at the time the complaint was drafted, respondent
In appellant's challenge to the sufficiency of the evidence, he contends that an element of the tort of alienation of a wife's affections is a purpose to accomplish diminution of her affections for her husband. This may be granted.
Appellant contends that the two causes of action were improperly joined, and that respondent should have been required to elect between them on the ground that he was seeking a double recovery for a single alleged wrong.
"You are instructed that the only basis upon which damages are recoverable on the First Cause of Action is the same as in the Second Cause of Action.
"You are further instructed that in the event you find for the plaintiff on the First Cause of Action and for the plaintiff on the Second Cause of Action that the plaintiff is entitled to only one recovery for loss of consortium which is made up generally of the loss of company, the loss of wife's services and plaintiff's mental agony, lacerated feeling, wounded sensibilities and love.
"You are further instructed, however, that as to any loss of services there shall be a deduction because of the plaintiff's duty to clothe, support and care for his wife."
The requested instruction is not the law. It was not error to refuse it.
Appellant did not except to instruction No. 3, but he did except to instruction No. 6 on the ground that it misstates the law as to the liability of one who aids in causing alienation of a wife's affection for her husband, in that it fails to include the words "controlling or procuring cause," not adequately covered in other instructions. He makes the different contention on appeal that, considered together, instructions Nos. 3 and 6 are inconsistent and confusing to the jury.
This issue is similar to the problem of causation in negligent torts where the term "proximate cause" is used. In alienation of affections, the actor's course of conduct must have been a cause, not necessarily the sole cause, in alienating the wife's affections. Prosser, op. cit., § 101 at p. 920; 3 Restatement of Torts § 683(i); 42 C.J.S. 321, Husband & Wife § 669, Defendant Not Procuring Cause: Other Causes Contributing, citing many cases; 27 Am. Jur. 129, Husband & Wife, § 526, Necessity That Defendant Bring About Alienation, citing several cases and annotation in 44 Am. St. Rep. 846. Viewed in this light, the instructions were neither inconsistent nor confusing.
Instructions Nos. 3 and 6 more correctly and adequately instruct the jury on the element of causation in the tort of alienation of affections. There was no error.
Appellant challenges the court's refusal to give two requested instructions. One was to the effect that, before appellant would be liable for alienation, he must have done some act or carried on a course of conduct, and that, if the
Appellant's seventh assignment of error applies to the action for criminal conversation and is that the court erred in refusing to instruct the jury that the evidence is insufficient if it establishes only the opportunity for, and the possibility of, sexual intercourse and fails to establish by a preponderance of the evidence that the act did occur. The court instructed the jury, among other things, that respondent would have established appellant's liability for criminal conversation if he proved by a preponderance of the evidence that appellant had sexual intercourse with respondent's wife. The instruction correctly stated the law. The requested instruction adds no necessary element. There was no error.
At the conclusion of the trial, appellant's motion for new trial, setting forth all the statutory grounds, was denied. Appellant assigns this as error and sets forth eleven matters the cumulative prejudicial effect of which, he contends, entitled him to a new trial.
The first matter raised by this assignment is whether it was prejudicial for the trial court, on his own motion, but without objection from appellant, to elicit from witness Grant testimony that neither Grant nor appellant was in military service during the war.
This was not error. The cross-examiner may ask the nature of the crime and the length of the sentence. State v. Steele, 150 Wn. 466, 468-470, 272 Pac. 742; State v. Lindsey, 27 Wn.2d 186, 177 P.2d 387, 181 P.2d 830.
The gravamen of appellant's argument is that the mere suggestion of narcotics under the circumstances of this case was misconduct of counsel prejudicial to appellant and, like the mention of insurance in negligence actions, entitled him to a new trial.
There is a difference of judicial opinion as to the relevancy of the drug habit or the mere use of narcotics, as in this case, to propensity for veracity. The view of a majority of the courts and the better view, according to Wigmore, is that it is relevant. 3 Wigmore, op. cit., § 934.
As to a course of conduct contrasted to specific acts of misconduct, see, also, the rule of State v. Coella, 3 Wn. 99, 28 Pac. 28, followed in State v. Cooper, 26 Wn.2d 405, 418, 174 P.2d 545.
The other occurrences upon which appellant relies are questions propounded on the cross-examination of appellant and of appellant's witness Hardy. They (1) tended to discredit appellant's brother and (2) raised the question of whether Hardy's mother approved of his going to the pharmacy. Even if error, they are not of a weight sufficient to constitute prejudicial error, entitling appellant to a new trial.
The judgment is affirmed.
SIMPSON, C.J., ROBINSON, HILL, and HAMLEY, JJ., concur.