1 Abb. Ct. App. 111 | NY | 1864
By the Court.
The theory upon which the case was submitted to the jury by the justice at the circuit, was, that if the defendant went by appointment and took the plaintiff’s wife away to her father’s, even though he
Here was no such lapse of time as to affect the principle of law which must govern in a case like this. The question of sudden impulse, or a few hours for reflection, is obviously not the controlling one in a case of this kind, in point of law.
As evidence bearing upon the question of good faith on the part of the defendant in doing what he did, it would be important, and might turn the scale; but it would be evidence bearing upon a question of fact only, which must be determined before the question of law arises. This is an action sounding in tort. The mere action of the defendant in taking the plaintiff’s wife in his wagon to her father’s, at her request, was not in itself a tortious act, though done without the plaintiff’s consent. No action could be maintained upon such an act
He may in such case treat the wife as a person, an individual entitled to credit, and invested with the rights and claims of, and upon, our common humanity. But he must be careful not to step beyond this legitimate boundary, into the field of undue influence and control, against the lawful rights and claims of the husband.
This was assumed to be the rule, in the charge, provided the defendant had acted promptly, at the first meeting and on the spur of the moment. It is neither unlawful nor improper in the wife to abandon a husband, who treats her cruelly, and with whom it is unsafe for her to remain; and in such a case anyone may, at her request, lawfully harbor or assist her in removing to a place of safety. Such assistance is not against the lawful rights or claims of the husband. He has no legal right to her society or services, if he treats her with cruelty, and makes her condition intolerable, provided she chooses to absent herself. Hor will the law permit the husband, in such a case, to recover damages for a loss thus occasioned, from his neighbors who may have merely assisted her, at her own request, in doing what the law allows her to do. I take it to be undoubted law, that in an action between the husband and a third party, for the loss of the society and services of the wife, who, at her own request and upon her statement of cruel and inhuman treatment at the hands of her husband, received shelter or aid in removing to another place, by such person acting in, good faith, there is no legal presumption in fayor of the husband that the wife’s statements are untrue. And unlawful motives cannot be imputed to the defendant unless they are established by direct proof, or are fairly deducible from the facts and circumstances given in evidence on the trial. The. wife’s statements in such a casq are in the nature of res gestes, and evidence may be given by the husband, showing that they were unfounded, and that the other party did not credit them, but acted in the premises from some unworthy or improper motive. Thus, in the leading case of Philp v. Squire, Peake’s Nisi Prius, 82, which was an action for harboring the plain
The rule laid down in that case is admitted to be the true one, in the case of Hutchinson v. Peck, 5 Johns. 196, all the judges agreeing that, when the defendant acts from motives of humanity toward the wife, and* in good faith, the action will not lie. And so in the case of Schuneman v. Palmer, 4 Barb. 225, it was held that the material point of the inquiry was the motive with which the defendant acted, and that the bare fact that the defendant had allowed the plaintiff’s wife to ride with him in his wagon to his house, and remain there contrary to a notice from the plaintiff, was not enough. See also Turner v. Estes, 3 Mass. 317.
The gist of the action, as all the authorities agree, is the loss, without justifiable cause, of the comfort, society and services of the wife. In maintaining the action, two questions principally arise: was the loss occasioned by the voluntary act of the wife upon justifiable cause; or was it occasioned by the acts or persuasion of the defendant, without any real cause, and in bad faith toward the plaintiff? On both these questions the plaintiff must give evidence tending to make out a case, or his action must fail. As was said by Chief Justice Willes in Winsmore v. Greenbank, Willes, 577, 581: .“though it should be said that the plaintiff lost the comfort and assistance of his wife, yet if the fact that is laid by which he lost it be a lawful act, no action can be maintained. By injuria is meant a tortious act.”
The error in this part of the charge is that it overlooks entirely the question of motive, and casts the burden upon the defendant of proving'the truth of the wife’s statements. If he went there by appointment, in the first instance, it makes the mere act, in that case, a tort, however honestly or humanely the defendant may have acted; and excuses the plaintiff from the necessity of giving any other evidence in support of his action.
In assuming that the defendant acted in what he did at the request of the wife, and in the belief that her statement was true, and for the purpose of removing her to a place of safety, his conduct was not only justifiable, but free from all just ground of censure. He might have kept her at his own house, but, under all the circumstances, it was more discreet and prudent in him to take her to her father’s, who was her natural protector and better fitted to advise her in respect to her future course than himself, who was on unfriendly terms with the plaintiff. If he arranged with her to come to her assistance during the night, in case of violence attempted, or inflicted, and to take her to her father’s in the morning, in good faith, •there was nothing unlawful in it, and the advice, under such circumstances, to the wife, to go to her father for shelter and safety, was such as he had a right to give. If the conduct of the plaintiff toward the wife was such as she represented, she was clearly justifiable in leaving him and going to her father’s, and any one would be justified in advising and assisting her. in doing so upon her application for protection and assistance. It was a lawful and proper act on her part, and the husband cannot complain if it was the result of his own misconduct. Eor this error alone, the judgment should be reversed, as the jury might well have found, and probably did, that the defendant went to the plaintiff’s on that occasion by appointment.
My conclusion is that the judgment should be reversed, and a new trial granted, with costs to abide event.
A niajority of the judges concurred.
Judgment reversed, and new trial ordered, costs to abide event.