Wallace v. Kerr

KNIGHT, J.

This is an appeal from a judgment for defendants entered pursuant to an order granting a motion for nonsuit in an action for the recovery of damages. We are of the opinion that plaintiff failed to establish a case which would have sustained a judgment in her favor, and therefore that the trial court was justified in granting the nonsuit.

The amended complaint upon which the cause went to trial was entitled “Amended Complaint for Conspiracy”. In the first paragraph it was alleged that the defendants “maliciously conspired together for the purpose of defaming and destroying the good name and reputation of the plaintiff and to injure her reputation as a mother for the purpose of destroying the affection and regard of plaintiff’s daughter, Louise Elizabeth Kerr, for her mother, the plaintiff herein”. Then followed a narration of certain statements and acts plaintiff alleged were made and committed by defendants in furtherance of the alleged conspiracy; and in the final paragraph of said complaint it was alleged: "That said acts . . . and said statements . . . have injured said plaintiff in her health and reputation and have further deprived her of the love, affection and companionship” of her daughter, to plaintiff’s damage in the sum of $100,000. The parties sued were Andrew Kerr, plaintiff’s former husband and the father of Louise; Kerr's present wife, Mathilda, sued herein as Tillie Kerr; Adelaide Brown, plaintiff’s sister; and Dennis Pickens,

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a friend of Louise. The statements and acts plaintiff alleged were made and committed by the defendants in furtherance of the alleged conspiracy were in substance that they told Louise that her mother was not a fit and proper person to have her custody; that plaintiff was insane and crazy, and that they advised Louise to leave plaintiff; that Adelaide Brown in the presence of Louise threatened to “railroad” plaintiff into an insane asylum if she sought to restrain her daughter; that Andrew Kerr made a similar statement to plaintiff; that he sent Louise transportation fare to come from New York to San Francisco by airplane to institute certain proceedings for the appointment of a guardian, and that he furnished the money to maintain said proceedings.

At the time the original complaint was filed Louise was past eighteen years of age; and the background of the litigation, as it appears from the record, may be stated as follows: In September, 1923, plaintiff obtained an interlocutory decree of divorce from Kerr. She was awarded the care, custody and control of Louise, who was then about five years old, and Kerr was ordered to pay to plaintiff the sum of $75 a month for the support, maintenance and education of Louise. The provisions of the final decree were in conformity with those of the interlocutory decree, and Louise remained under plaintiff’s care and custody until the early part of January, 1937, when she petitioned the superior court for the appointment of a guardian of her person, whom she nominated. Plaintiff filed objections to the granting of the petition, and appeared at the hearing in person and by attorney; and on April 21, 1937, Mrs. Mary C. Kohler, the ward’s nominee, was appointed guardian. Plaintiff appealed, but on November 30, 1938, the trial court’s order was affirmed.