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exists, was wholly completed and aside the verdict, and holding the consummated long prior to the time same for naught." plaintiff's wife started to worship A brief statement of the situation with the defendants, and that the and the acts of the defendants, updefendants, at no time and in no on which it is sought to charge demanner contributed to the aliena- fendants with liability as shown by tion of the affections of plaintiff's the evidence, is necessary in order to wife from plaintiff, and that they make clear the decision of the quesdid not at any time advise or coun- tions presented by plaintiff's assignsel plaintiff's wife regarding her ments of error. It is important to private life, material matters, or her note in that connection that, during relations with her husband.
the trial, defendants seasonably inThe affirmative matter in the an- terposed a motion for nonsuit and swer is denied by plaintiff's reply. also a motion to direct the jury to
The cause being at issue, a jury return a verdict in favor of the detrial was had therein, resulting in a fendants, both of which motions verdict in favor of plaintiff, and were overruled by the court. against all the defendants, in the The relations of the parties and sum of $2,500. The circuit court did those phases of their several charnot enter judgment upon the forego- acters which furnish a clue to the ing verdict, as directed by $ 201, Or. motive or intent accompanying the Laws, but upon its own motion en- acts hereinafter specified, committered the following order and judg- ted by each of them respectively, ment:
may be gathered from the uncontro"Wherefore it appearing to the verted facts in the case and the reacourt that the above verdict is con- sonable deductions to be drawn trary to law in that there is no evi- therefrom. dence to support the same or any The defendants, all of whom are evidence to show that there was a presently named and described, for conspiracy or a concerted design on many years, and during the period the part of the defendants, or any covered by this controversy, attendof them, to alienate the plaintiff's ed in Dallas, Oregon, the mission or wife's affections; and, for a further place of worship of a religious reason at this time, it appears to the organization known as the Apostolic court that the complaint herein fails Faith, the tenets and creed of which to state facts sufficient to constitute they in good faith devoutly believed a cause of action :
and earnestly endeavored to follow. "Therefore, it is ordered and ad- Among the tenets of the creed of the judged that the said verdict be and Apostolic Faith is the power of is hereby set aside and held for Jesus Christ to heal bodily ailments, naught, that said action be dis- and that divorce is forbidden by the missed, and that defendants recover Word of God. against plaintiff herein their costs Frank Holman is a farmer, who and disbursements, taxed and al- has lived near Dallas for twenty-one lowed at $"
Clem Swenson is a fruit Plaintiff appeals from the order
grower, who has lived in the vicinity and judgment above set forth, and
of Dallas for nine years. Mrs.
Frank Splawn is an elderly woman, assigns error as follows: "I. The court erred in not enter
who lives across the street from ing judgment upon the verdict in
plaintiff, and has known him since favor of appellant and against re
he was a boy. Mrs. C. A. Rice lives
adjacent to plaintiff's house, and is a spondents.
sister of plaintiff's wife. "II. The court erred in entering Plaintiff and his wife were marjudgment for the respondents and ried June 15, 1910. From the date against appellant.
of their marriage until the time of “III. The court erred in setting the trial, plaintiff and his wife lived (- Or. 223 Pac. 730.) together in Dallas, Oregon. They started to the mission in company did not separate or live apart at any with Mrs. Splawn and Mrs. Rice. time. Two children, a girl and a Plaintiff interfered and objected to boy, ten and seven years of age, re. his wife attending the mission, and spectively, both living, were born of vociferously abused Mrs. Splawn the marriage. During the time cov- and Mrs. Rice, and charged them ered by the transactions in this case with interfering in his family afplaintiff and his wife resided in a fairs. Mrs. Splawn and Mrs. Rice dwelling house erected upon a lot both protested that they did not have which plaintiff's wife owned at the any desire or intention of meddling time of their marriage, and toward in his family affairs, and asserted the erection of which she contrib- that their invitation to Mrs. Hughes uted a substantial sum of money. to attend the mission was not given Plaintiff earned a living for himself with that purpose. Plaintiff's wife and family by working as a common thereupon yielded to plaintiff's oblaborer, most of the time in saw- jections, and returned with him to mills. Plaintiff is a quick-tempered, their home across the street. rough-spoken, violent man, who ex- Thereafter in February, 1919, pects and attempts to exact from his plaintiff's wife was informed by a wife complete obedience, not only to physician whom she had consulted, his instructions and directions, but that she was suffering from cancer to his whims as well. He is un- of the breast. She was very much manly, belligerent, and truculent in perturbed and downcast by this the presence of women, and of men news, and supposed that she would who, in case of physical violence not live long. Following the disoffered them, practise the Scriptural covery that his wife was afflicted injunction to turn the other cheek. with cancer, plaintiff had some
The evidence fairly indicates that conversation with Dr. Bollman, of plaintiff's wife is a dutiful woman, Dallas, concerning treatment of his reasonably submissive to plaintiff's wife by an X-ray specialist in demands, and quite as patient with Portland, and plaintiff claims, in his explosive temper and unmanly his testimony, that he made arconduct as could be expected of any rangements for such treatment, , self-respecting wife. Her health and his wife refused to submit to had not been good since the birth of the same. During this time, plainher first child.
tiff's wife, as might be expected, The only evidence offered by suffered from low spirits and implaintiff in support of his charge paired physical energy, and on acthat defendants alienated his wife's count thereof lacked interest in her affections is contained in the testi- household affairs for some months. mony of plaintiff, given as a witness Her sister, the defendant Mrs. C. A. in his own behalf. We will now Rice, advised plaintiff's wife that state the substance of that testi- she had better not depend on the mony.
doctors, but trust God for her health. At the time of the marriage of Following that conversation, and plaintiff and his wife, or shortly in the month of November, 1919, thereafter, plaintiff exacted a prom- plaintiff and his wife commenced ise from his wife that she would not attending religious services at the attend the religious services of the Apostolic Faith Mission in Dallas, Apostolic Faith.
and plaintiff, together with his wife, In February, 1918, Mrs. Splawn continued to attend those meetings and Mrs. Rice invited plaintiff's wife and to join in the services there conto attend the religious services con- ducted for several months. Plainducted by the members of the tiff's wife entered heartily and Apostolic Faith at their mission in faithfully into the services in the Dallas.
Plaintiff's wife accepted earnest hope that thereby she might the invitation, and in the evening invoke a Divine Power that would
heal her from the malady from they lived, or at least a half interest which she was suffering. Her ferv- therein. Several meetings were had or, augmented by the prayers and between plaintiff and his wife and supplications of the defendants, the defendants. One of these was prompted her to assume postures had at plaintiff's residence and the and to execute contortions that dis- others at the mission. At each meetpleased plaintiff, whose comments ing, plaintiff insisted that the dethereon caused defendants Mrs. fendants persuade his wife to make Splawn and Mrs. Rice to question the conveyance mentioned, and also his sincerity in attending the mis- that they require her to cease atsion. Plaintiff's wife felt that she tending the mission. The defendhad been benefited both physically ants declined to exert the requested and spiritually, and continued to at- influence upon plaintiff's wife, stattend the meetings in defiance of ing in effect that they felt that it plaintiff's renewed objections pres- was inappropriate for them to offer ently mentioned.
any advice concerning the conveyIn February, 1920, plaintiff suf- ance, and further that they felt that fered an attack of influenza, as did if plaintiff's wife desired to attend each of plaintiff's children. Plain- the mission, and behaved herself tiff's wife nursed plaintiff and the while there, defendants properly children during their illness, and could not interfere to prevent or rebrought them through the same suc- strain her from so doing. It is cessfully. Plaintiff did not, after he manifest from the evidence that the recovered from his illness, again defendants and also plaintiff's wife attend the mission, but vigorously honestly believed that plaintiff was denounced the members thereof, unreasonable in his aforesaid departicularly the defendants, charg- mands and exactions. However, no ing them with intermeddling in his direct expression from any of them family affairs, by encouraging his to that effect appears in the eviwife to attend the mission contrary dence. to his wishes. Upon one occasion he While the disputes mentioned violently assaulted the defendant
were going on, plaintiff almost daily Holman, and on numerous occasions engaged in broils with his wife, in spoke in a rough and unmanly way which he reiterated his demand that to both Mrs. Splawn and Mrs. Rice she refrain from attending the and also to Mrs. Holman. Plaintiff mission, and that she deed the propcharged defendant Swenson with erty to him. On one occasion, plainparticipating with the other defend- tiff physically assaulted his wife, ants in interference with his domes- and with such violence that the tic affairs. The defendants, when neighbors, to compose the trouble, so charged by plaintiff, in each in- called in the marshal and sheriff
. stance, protested that they had not On another occasion, plaintiff admeddled in his family affairs, and dressed defendant Holman in such a that they did not feel that it was threatening manner that bystanders proper for them to prevent his wife seized him, and, because of his viofrom attending the mission if she de- lent struggles, threw him down on sired to do so.
the pavement and held him until the A large part of plaintiff's testi- city marshal arrived, when he was mony consists of his version of what taken to jail. he said to the defendants and their For a year or more after plainreplies on the occasions mentioned, tiff's wife discovered she had a canrather than of any persuasions or cer she did not attend as closely to influence exerted by defendants on her household duties, and was not plaintiff's wife.
as attentive to the care of her chilDuring this latter period, plaintiff dren, as was her practice both beconstantly insisted that his wife con- fore and after that time. During vey to him the residence in which the period last mentioned, plaintiff's
(- Or. - 223 Pac. 730.) wife occupied a separate bed from A. Well that is the only thing. He him, in order that she might obtain told me to go ahead and sue them. the rest that her physical condition
Plaintiff testified concerning Mrs. demanded.
Frank Holman as follows: When plaintiff ceased attending
A. Well at the time she was up the mission early in 1920, his wife
there and I said to her, “Why do you refused to accede to his demand that
want to break up my home,” and she she not attend the mission. Prior to
said she would like to see me stop that time she had always yielded to
She told me one timehis objections, although she desired
she talked to my wife in the alleyto go to the mission for religious
I asked her what she worship.
was doing, talking to my wife, and Following the acts of violence
she said, “Giving her advice," and I committed by plaintiff on the de
said, "I want all this talking befendants, the frequent disturbances
tween you and her stopped-what of the peace by him, and the assault
you are teaching her," and she says, upon his wife above referred to, the
"I told her it might be better if she latter refused to kiss plaintiff, as had
didn't come quite so often.” been her habit throughout their
Well, I called them back in their married life when he went away for little room, or they called me in, and the day and upon his return in the they told me then that if I would evening. On one occasion, when
trust in God like Emma was, and plaintiff had deeply offended her, listen to them, if I would try to live she took off her wedding and en
like they were, that I might be gagement rings. The circumstances saved; but she said, “The way you last referred to are relied upon by
are now, you would go to hell." plaintiff to establish the alienation of his wife's affections and her
Of Mrs. Frank Splawn, plaintiff neglect of her household and family
She came over to the house, after In addition to the matters above
I was going to the mission, to call up related, the defendants Mrs. C. A.
her son in Falls City, and she says Rice and Mrs. Frank Splawn fre
to me then, "Aren't you glad now I quently, on their way to the mission,
advised Em to go to the mission ?” stopped across the street from plain- I said, “I would have been gladder if tiff's residence, and waited for plain
they had a doctor.” That we would tiff's wife to accompany them, and
be better off, or words to that effect. sometimes one or the other of the
I don't remember just exactly. said defendants would call to plain- Plaintiff testified as to statements tiff's wife.
made by Mrs. Rice as follows: Concerning the defendant Frank
I said, “I thought you told me you Holman plaintiff testified:
would not ask Em to come up to the A. He told me he was glad she
mission hall—you better leave my had taken the stand against me and
family alone.” She says, “I won't the children, and if she would listen
do it; I am going to get Em to come to them she would be healed the
to the mission all I please." "Why same as he had been of consumption
do you want to do that when I don't - he told me they called it consump
want her to?” she said, “It don't tion, but he thought it was some
make any difference.” kind of liver trouble.
Concerning defendant Clem Swenup in testimony and pointed over to son, plaintiff testified: her and said if she would listen to A. He talked to her the same as them she would be healed, if she all the rest. They talked to her all would allow God to have a chance. of them, at the same time. Clem
Swenson he told me he could have Q. What else did he ever say ? stopped the trouble if Mrs. Holman
had allowed him, but she wouldn't. plaintiff's manner of raising and atI believe Clem Swenson would have tempting to enforce them was unstopped it if they would let him; he becoming and unmanly, and well caltold me at one time he would have culated to create rebellion in the stopped my wife if they would let heart of the most dutiful wife. him. Told her to come to the In the circumstances disclosed by mission and not pay any attention to the evidence, no legal duty rested me. I objected to it then.
upon the defendants to co-operate Q. Did he ever say anything
ever say anything with plaintiff to prewhich you considered influenced her? vent the wife of the husband in
-duty to aid A. Not any more than his teach- latter from attend- controlling
actions of wise. ing.
ing religious serv
ices at the mission. Rightfully they The legal aspect of the differences that existed between plaintiff and
could not forbid plaintiff's wife from his wife, respecting the desire of the attending those services and particilatter to attend the mission of the pating therein. The defendants, or Apostolic Faith, is well stated in
any of them, had a lawful right to Poor v. Poor, 8 N. H. 307, 29 Am.
invite plaintiff's wife to attend those Dec. 664, a case that arose at a time
services, and they
-right to invite
also had a lawful wife to attend (1836) when the rights of married
services. women were far more restricted right to take part in
those services with her; there being than they are now. Mr. Chief Justice Richardson, speaking for the nothing unlawful or immoral or imcourt, said: “But a wife is neither proper in such services, or incidenthe slave nor the servant of a hus
tal thereto, as appears from the eviband. He is the head of the house,
dence in the instant case. In the abto whom as such she is subordinate.
sence of improper motives or unlawBut she is at the same time his com
ful intent on their part, the mere obpanion, the partner and sharer of jection and disapproval of plaintiff, his fortune, in many respects his
based alone upon whim or prejuequal; who in her appropriate dice, did not take away or impair sphere is entitled to share largely in
the rights of the defendants, in the his authority. And he is bound not respects mentioned. Of course, acts only to honor and support her, but intentionally done with the purpose to accord to her freely and liberally
of alienating the affections of a wife, all her rights, and to guarantee to
and which accomplish such alienaher the full and free enjoyment of tion, render those committing such all her just privileges and preroga
acts liable in damages to the injured tives as the mistress of the family. spouse, notwithstanding the acts In a particular manner he is bound complained of may have been comto leave her free to enjoy her own
mitted in the guise of religious religious opinions, and worship God
teachings. according to the dic
In order to prove his case, it was Husband and wife-right to tates of her own
incumbent upon plaintiff to produce reason and
some substantial evidence that the worship of God.
conscience; and not to
acts of the defendants of which he molest or restrain her in this re
complained were committed malispect, provided she does not in her implying malice in law, and with
ciously or from improper motives zeal disturb the public peace, nor
the design and intent to alienate the rebel against his lawful authority.”
affections of plainUnder the circumstances shown
tiff's wife from him, burden of proof by the evidence in the instant case, and that such acts alienation of the objections interposed by plaintiff were the controlling to the attendance by his wife at the cause which produced an estrangemission were unreasonable. They ment between him and his wife. were not only unreasonable, but Pugslay v. Smyth, 98 Or. 448, 459,