
    Ray et al. v. Parsons.
    [No. 22,841.
    Filed June 17, 1915.]
    1. Husband and Wife. — Alienation of Wife's Affections. — Action Against Parents. — Evidence.—In a husband’s action against his wife’s parents for the alienation of her affections, undisputed testimony showing that all that was done by defendants was for the best interest of their daughter and her infant child, and out of parental solicitude for their comfort, at the solicitation and request of the daughter, and without any request on the part of either parent that she leave her husband, will not support a verdict for plaintiff, pp. 345, 346.
    2. Husband and Wife. — Alienation of Wife's Affections. — Action Against Parents. — Evidence.—To sustain a verdict for plaintiff in a husband’s action against his wife’s parents for the alienation of her affections, the evidence must not only show that all that was done was not done for the welfare of plaintiff’s wife, but that it was done with malice toward plaintiff and with intent to destroy her affections for him and cause a separation, p. 34G.
    3. Husband and Wife. — Alienation of Wife’s Affections. — Action Against Parents. — Presumptions.—A presumption exists in favor of parents, charged with alienating the affections of their daughter from her husband, that what they did was inspired by a proper regard for the welfare and happiness of their daughter, and the evidence, to warrant a recovery against them, must not only be sufficient to overcome such presumption, but to establish malice in their action, p. 346.
    From Yigo Circuit Court; Charles M. Fortune, Judge.
    Action by Fred Parsons against John Ray and another. From a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)
    
      Reversed.
    
    O. B. Harris, G. M. Crane, A. L. Miller and Wesley Forbes, for appellants.
    
      McNutt, Wallace & Slinkard, Charles D. Hunt and Gilbert W. Gambill, for appellee.
   Erwin, J.

— This was an action by appellee against appellants for alienating and destroying the affections for appellee of appellee’s wife, appellants’ daughter. Issues joined and trial by jury resulted in a verdict for appellee in the sum of $2,500. The sole question presented by this appeal is the overruling of the several motions of appellants for a new trial.

The facts in this ease show that appellant Laura Eay was called upon to assist her daughter, appellee’s wife, in time- of childbirth; that she, Laura Eay, found her daughter appellee’s wife, uneared for in a cold house. Appellant Laura Eay, administered aid until the daughter was able to sit up; appellant Laura Eay was subjected to abuse .by appellee during the continuance of her stay at appellee’s house. She called John Eay, the husband and father, upon the phone, requesting him to call for her and take her home. He arrived at appellee’s house at night for the purpose of taking her home. At this time their daughter, appellee’s wife, insisted on going home with them, stating that she could not stay at appellee’s house without care. Appellants permitted her to go along; that they called on the attending doctor to see if she was able to stand the trip of ten miles, and upon being advised that she could stand the trip and that it was the best place for her, they took her home; that at the time appellants took their daughter, appellee’s wife, ■to their home, appellee had left his home, without saying to his wife or to her parents, who were then present, as to where he was going or when he would return; that some days before she was taken to the home of appellants, the advisability of doing so was discussed by appellant, Laura Eay, and the attending physician, Dr. Bland, and the doctor advised that she should either be taken home or to a hospital where she could have better care and nursing. ■

2. The undisputed testimony in this case shows that all that was done by either appellant, was for the best interest of their daughter and her infant child, and by reason of paternal and maternal solicitude for the comfort of their daughter and her child; that her return to her father’s home was on her own solicitation and at her’ request. There is no testimony that either the father or mother asked or requested that the daughter leave appellee, or even suggested such action on her part. It is shown by the testimony that the father and mother took her to their home, but that it was in response to her earnest entreaties. The law requires that to make a case against parents for the alienation of their daughter’s affections for her husband, the evidence must not only show that all that was done was done not for the welfare of the daughter, but that it was done with malice toward appellee and with the intention of destroying the affections of appellee’s wife for him, and to cause her to separate from him. Workman v. Workman (1909), 43 Ind. App. 382, 386, 85 N. E. 997, and cases cited; Gregg v. Gregg (1906), 37 Ind. App. 210, 217, 75 N. E. 674.

There is a presumption that a parent’s action towards a daughter is inspired by a proper regard for the welfare and happiness of the daughter and before a recovery can be had in this class of cases there must be evidence sufficient, not only to overcome this presumption but to establish that the parent acted maliciously. If the parental affection for a daughter, manifested by the wish that the daughter might be near her parents, so that she could be properly cared for,- and have á warm and comfortable home in which she could be properly nursed back to health, should be held to be actionable, then parental affection counts for naught and the tender solicitude of the mother for her daughter must be severed at the daughter’s marriage altar, a condition that is inconceivable either in law or morals.

If there were no presumptions in favor of the parents to be overcome, the strongest inferences that could be drawn from all the facts shown in this case would come far short of establishing that the parents acted “maliciously” and unlawfully when they removed their daughter to their own home, so that they could give her the proper care and attention in an effort to restore her and her infant child to health. We are of the opinion that there is uo evidence in this case which tends to sustain the verdict. Judgment reversed with instructions to grant a new trial to both appellants.

Note. — Reported in 109 N. E. 202. As to actions for alienation of wife’s affections, see 44 Am. St. 845. As to actions for alienation of husband’s affections, see 28 Am. St. 217; 46 Am. St. 472. As to liability of parent for causing separation of husband and wife, see 9 L. R. A. (N. S.) 322; 8 Ann. Cas. 813. See, also, under (1, 2) 21 Cyc. 1624, 1619; (3) 21 Cyc. 1619.  