136 S.E. 47 | W. Va. | 1926
This is an action of trespass on the case, instituted in the circuit court of Mercer County, by Amelia M. Dalton against Annie M. Martin, for enticing, persuading and procuring the husband of the plaintiff to leave, desert and abandon her. The defendant is a widow woman, fifty-three years of age, residing in Princeton, West Virginia, and engaged there in conducting a rooming and boarding house. The plaintiff is a resident of Bedford county, Virginia. Her husband is a machinist, 38 years old, and since their marriage in 1909 has worked away from his home most of the time. In March, 1924, he came to Princeton, West Virginia, to work at his trade for the Virginian Railway Company, and in the following April went to live at the boarding and rooming house of the defendant. The plaintiff contends that while her husband was so boarding with the defendant that he and defendant began to pay undue attentions to each other, and became infatuated with each other, and that her husband lost his affections for plaintiff, and became estranged from her, resulting in her abandonment by him. No charge of criminal conversation is made, and no proof thereof is contained in the evidence. The defendant *597 contends that there were no improper relations or conduct between herself and plaintiff's husband, that nothing beyond ordinary friendship, existed between them, and that there was no interference in the marital relations of plaintiff and her husband by the defendant.
The errors alleged go to (1) the introduction of evidence, (2) the giving and refusal of instructions, (3) the insufficiency of the evidence to sustain the verdict, (4) its excessiveness, and (5) that an unsworn witness testified for the plaintiff.
Objection was made to the introduction of one of Dalton's letters to Mrs. Bagley, his foster mother, as a part of her testimony. In it, Dalton, after apologizing for delay in writing, etc., states that her letters make him dizzy, one comes "gee" then one comes "haw", that he has experienced sixteen years of married difficulties from which he intends to "get loose gracefully", if he can, and if not, that he will take his "little lady", designated as "N", and go to parts unknown. This letter was admissible only for the purpose of showing the relation existing between the plaintiff and her husband. The objection being general, the letter was properly introduced. This Court has held that a general objection to evidence, admissible for one purpose but improper for another, should be overruled. Rogers v. Engineering Co.,
The plaintiff on direct examination was asked if she had any letters from her husband after he came to Princeton, which in any way referred to his affections or lack of affection to her. To this she replied, "Yes, lack of affection. We have letters to that effect." This answer was permitted to go in evidence over the objection of the defendant. The letters were not produced or accounted for. This was error. Although *599 admitting that she received many letters from her husband, but two letters showing good relation between plaintiff and her husband, written in April, 1924, are introduced. This was followed by the introduction of three letters showing disagreements and bad relations, but in no way disclosing reason therefor, written in March, May and June, 1925. Upon cross-examination of the plaintiff, she was asked why she selected that many letters to introduce, instead of giving the whole correspondence between herself and husband between said dates? Upon objection the court refused to permit her to answer. This seems to us to come within the rule of legitimate cross-examination.
The form of the declaration here assumes, of course, the right of a wife to bring suit in her own name, without joining her husband, against a third party, for alienating her husband's affections and enticing and persuading him to quit her company and society, and also depriving her of his aid and protection. This declaration has been held sufficient. Hogg's Pleading Forms, p. 624. The complaint of the defendant that the first instruction given for the plaintiff, based upon the ground of liability for alienation of the affections of the husband, upon the ground of liability not alleged in the declaration, therefore, is without merit.
The second instruction given at the plaintiff's instance directing in case of finding for the plaintiff that the damages be assessed in such sum as the jury may believe the plaintiff entitled to is improper because it did not require such finding to be made upon the evidence. However, we would not reverse for this error alone where it does not appear that the jury was misled thereby. Neely v. Town of Cameron,
The remaining assignments of error, in view of the disposition that must be made of this case, are not necessary now to be considered.
The judgment will be reversed, the verdict of the jury set aside, and the case remanded to the circuit court for a new trial.
*601Reversed.