ALLISON v. MILDRED

BARRETT, Commissioner.

In June 1944 the plaintiff, Allison, instituted an action against the defendant, Mildred, for actual and punitive damages for alienating the affections of his wife. In September 1944 the plaintiff filed an amended petition in two counts; the first count for alienation of affections, and the second count for criminal conversation. Upon the trial of the cause in March 1950 the plaintiff's right to recover damages was submitted upon the second count only, criminal conversation, and the jury awarded the plaintiff $5000 actual damages and $5000 punitive damages. The defendant, Mildred, appeals from the judgment entered upon the verdict.

His principal complains upon this appeal concern what he terms the unfair, misleading conduct of plaintiff's counsel which he asserts resulted in an unfair trial. The complaints originated in these circumstances: The defendant did not testify and offered no evidence in defense of the action, and when plaintiff's counsel announced that he had concluded with his evidence defendant's counsel offered two motions for a directed verdict, one directed to each count of the petition. Both these motions were marked "refused" by the court. Thereupon counsel for the plaintiff and counsel for the defendant engaged in a somewhat lengthy colloquy before the court. Counsel for the defendant discoursed on whether there were two separate causes of action or whether there was but one cause of action, alienation of affections, the criminal conversation merely aggravating the damages. Finally defendant's counsel said that as he understood, plaintiff's counsel contended there was but one cause of action, alienation of affections, and he therefore proposed to withdraw his motion for a directed verdict as to the second count of the petition, criminal conversation. Plaintiff's counsel then stated his views, the substance of which was that he was entitled "to go to the jury on the evidence as shown," and that the evidence authorized damages for two things, alienation of affections and criminal conversation. The court indicated that there was substantial evidence to support either or both counts but stated that he would not submit criminal conversation in aggravation of the cause of action for alienation of affections and also permit separate recovery on the second count for the criminal conversation. In any event counsel for the plaintiff indicated that he would submit his cause upon the first count. Counsel for the defendant then announced that he withdrew his motion for a directed verdict as to the second count, and court recessed until the following day.

The next morning defendant's counsel announced that he had just been informed by plaintiff's counsel that he intended to submit his cause by one instruction upon the second count only, for criminal conversation. He thereupon recounted, as he remembered, the colloquy of the preceding day and objected to the submission of the cause upon the second count. He discussed the fact of his having withdrawn his motion for a directed verdict, the fact that his witnesses had been excused, that the defendant had not testified on the assumption that the case would be submitted upon the first count for alienation of affections, and insistently objected to the submission of the case upon the second count only for criminal conversation. Appellant's counsel now characterizes the conduct of plaintiff's counsel in so submitting his case as misleading and unfair, so much so that it resulted in great prejudice to the defendant and that therefore he should be granted a new trial. Supreme Court Rule 3.27; Estes v. Nell, 163 Mo. 387, 63 S.W. 724.

It is unnecessary to further detail the circumstances complained of or to further set forth the appellant's argument that the court erred, in the circumstances, in permitting the plaintiff to submit his cause on criminal conversation and in not setting aside the jury's verdict on that count. It will be observed that the plaintiff had not unexpectedly amended his pleadings during the course of the trial, and there is no claim of variance in the pleading and proof. Counsel had notice of all possible submissible issues from the pleadings. Smith Keating Implement Co. v. Wheeler, 27 Mo. App. 16. Furthermore, assuming that the defendant and his counsel were surprised by plaintiff's counsel's change of mind as to the theory upon which he would submit his cause, there was no request for a continuance, either to secure witnesses and to offer proof or to draft new and different instructions. The court stated that time would be given for the purpose of drafting instructions but defense counsel said, "I am not complaining of the action of the court other than in permitting them now to change their cause of action and go to the jury on it." There was no surprise to the defendant or his counsel in the evidence. The most telling evidence was the deposition of the former wife and defense counsel participated in the taking of the deposition in 1946. There is no claim, and there could be none upon this record, that there was not substantial evidence to support a finding of criminal conversation. However the position of plaintiff's counsel is construed, there was no agreement as to the issues to be tried and submitted, Smith Keating Implement Co. v. Wheeler, supra, and the trial court was under no misapprehension as to the issues. Estes v. Nell, 163 Mo. 387, 63 S.W. 724. If there was surprise in any manner it was the duty of counsel to appeal to the court's discretion, Kinsella v. Kinsella, 353 Mo. 661, 183 S.W.2d 905, and request a reasonable postponement for the purpose of meeting the matter complained of. Bragg v. City of Moberly, 17 Mo.App. 221. Essentially the appellant's claim is that he was surprised by the ruling of the court and by the court's giving certain instructions, other than those anticipated by him, and that alone does not demonstrate prejudicial error or a sufficient reason for a new trial. Hilliker v. Francisco, 65 Mo. 598, 605; State, to use of Lechter v. Schar, 50 Mo. 393, 395; Robbins v. Alton Marine Fire Ins. Co., 12 Mo. 380, 381.

It is also urged that the $10,000 verdict is "outrageously excessive," indicative of passion and prejudice on the part of the jury. It is urged, because of the misleading conduct of plaintiff's counsel, that defendant offered no evidence and defendant's counsel did not argue the case and that the amount of the verdict can be accounted for only by reason of the conduct complained of, otherwise there is no attempt to demonstrate the excessiveness of the verdict. In all the circumstances it may not be said that the jury was swayed by passion and prejudice or that its verdict of $5000 actual damages and $5000 punitive damages is excessive. Hollinghausen v. Ade, 289 Mo. 362, 233 S.W. 39; De Ford v. Johnson, Mo.Sup., 177 S.W. 577; Fuller v. Robinson, 230 Mo. 22, 130 S.W. 343; Annotation 69 A.L.R. 1282.

Accordingly the judgment is affirmed.

WESTHUES and BOHLING, CC., concur.