32 How. Pr. 142 | N.Y. Sup. Ct. | 1866
The complaint charges, that the defendant, “ contriving and wickedly and unjustly intending to injure the plaintiff, and to deprive him of the affections, comfort, fellowship, society and assistance of Eachel, his wife, did, at, &c. wrongfully and unlawfully purpose, plan and undertake to alienate the affections of his (the plaintiff's) said wife, and did then and there, for the accomplishment of such purpose,'' (by various professions and pretenses set forth,) “and by false insinuations against the plaintiff) and by other insidious wiles, so prejudice and poison the mind of the said Eachel, against the plaintiff, and so far alienate her affections from her said husband, as to induce the said Eachel to desire and seek to obtain a divorce or separation from the said plaintiff; and that the defendant, on or about the first day of February, 1866, did counsel, advise, aid and assist the said Eachel in efforts to procure the commencement of proceedings for such divorce or separation, he, the "defendant, well knowing that no cause or lawful ground existed for either a divorce or separation. And that the said defendant did, by the means aforesaid, so far prejudice and poison the mind, &c. of the said Eachel against the said plaintiff, and did so far alienate her affections from the plaintiff, as to persuade and induce her to refuse to recognize or receive the plaintiff as her husband; and that on or about the 15th day of March, 1866, the said Eachel, acting under the wrongful and unlawful advice, influence and direction of the said defendant, did refuse to recog
Admitting, as a demurrer does, the facts alleged, do they constitute a cause of action ? This seems to be the only question in the case. It is insisted that the acts specifically charged are not unlawful, and that therefore no action can be maintained. The conclusion from the premises of this proposition is a non sequitur, and is not sound. It is not the act alone, but it is the consequence which may directly or naturally result from an act, for which the party may be responsible ; and most especially is this the case,- when the act is done mischievously, designedly and wickedly, and with intent to produce the consequences that ensue; and a party is answerable criminally, as well as- civilly, for such consequences. The questions, then, in this case, are, were the consequences alleged the direct and natural result of the defendant’s acts; and if so, are they the subject of an action, or the ground of damage ? I am not able to see any thing unnatural in the result, from the premises charged, but the contrary. If, as is admitted by the demurrer, the defendant contrived, and with a wicked intent, tried to deprive the plaintiff of the society, affections, aid and assistance of his wife, and with such intent did'perform the acts alleged; if he did attempt to persuade and induce the plaintiff’s wife to refuse to “ recognize or receive the plaintiff as her said husband,” and if the plaintiff’s said wife did afterwards so refuse to recognize or receive her said husband, or to live with him as his wife; if the plaintiff subsequently lost, and was de
This brings us to the real point in the case to be considered. Does such alienation of the affections of the wife; such refusal to recognize and receive the plaintiff as her husband, and to live with him as his wife ; such a deprivation of the comfort, fellowship and society of a wife ; such a loss of her aid and assistance in his domestic affairs, as is charged, though there be no actual physical absence or separation of the wife from him, constitute a cause of action, when caused as charged in the complaint ?
Separation is the usual consequence of such interference, and the cases found in the books are, it is true, cases of actual separation from the house and home of the husband; and upon this authority it is insisted that an allegation of pecuniary loss, or loss of services by an actual leaving, or continuing away from service, is necessary, to make out a cause of action. I do not think that this argument is sound. The gist of the action is the loss of the comfort and society of the wife. (Weedon v. Timbrell, 5 Term R. 357, 360.) Ashhurst, J. in this case, said: “ The gist of the ac- j tion is the loss of the comfort and society of the plaintiff’s \ ' wife ; that is always inserted in declarations of this kind as a material and substantial allegation, and the forms of pleading are evidence of the law.” In Hutcheson v. Peck (5 John. 207, 208,) Spencer, J. held, even in a case where a father had given protection to his child, who was the plaintiff’s wife, “ that if he did it maliciously, or improperly against the will of her husband, and thereby deprive him of comforts he is entitled to enjoy from her aid and society, most undoubtedly an action will lie.” This proposition, laid down by Judge Spencer, is not to be regarded as at all in conflict with the remark
The case before us differs from the cases cited, not in principle, but only in the fact that there was no actual departure of the wife from the husband’s house, in the case before us. But how does this fact change the case, or the principle to be determined by it ? The injury in either case is the same, upon the authority above cited. I am not sure that the wrong and injury is not aggravated by the fact that the wife still remains in the house of the husband. Here was the same poisoning of her mind ; the same alienation of
How is desertion, then, to be distinguished from separation? What reason can be given that should make it material that there be a technical physical separation of the parties, in order to constitute a cause of action ? I apprehend that the separation which occasions the real injury, the suffering, the loss, is based upon a higher principle; it is one that strikes at the source of the highest enjoyments of life; it is alienated affections, the loss of comfort, of fellowship, society, aid and assistance in domestic affairs; the loss of conjugal rights. “It may be laid down as a rule, (says Bishop,) that if one party refuse to the other whatever belongs to marriage alone, from causes resting in the will, and not from physical inability, the refusing party would thereby voluntarily withdraw from whatever the relation of marriage,
The law affecting this relation, I am disposed to say, should be administered and held in all its fidelity and integrity ; the courts at least should see to it, that the reproach should not be cast upon them, that he who commits an injury, such as that complained of in this case, should not be permitted to escape the consequences of his act, upon a frivolous and immaterial technicality.
The order of the special term should be affirmed.
Bockes, James, Rosekrans and Botter, Justices]