Keath v. Shiffer

37 Pa. Super. 573 | Pa. Super. Ct. | 1908

Opinion by

Porter, J.,

The gravamen of this action, as set forth in the statement filed by plaintiff, was the alienation of the affections of the wife of the plaintiff and causing her to desert and abandon him. The statement did not aver that there had been criminal conversation between the wife and the defendant, although it did state that on two occasions they were seen under such circumstances “as to warrant the conclusion that improper relations existed between them.” This amounted to nothing more than an averment of certain facts, followed by a statement that these facts were sufficient to warrant the inference of another fact, but it was not the equivalent of specifically charging the defendant with criminal conversation. The parties went to trial upon the statement which only sufficiently averred that the defendant had wickedly and intentionally alienated the affections of the wife of the plaintiff, and had persuaded her to desert and abandon him. That a husband may maintain an action against one who has wrongfully induced his wife to separate from him and that a wife has a like right against one who has intentionally induced her husband to abandon her is well settled: Gernerd v. Gernerd, 185 Pa. 233; Reading v. Gazzam, 200 Pa. 70. It is not necessary, in order to sustain such an action, that the plaintiff should either allege or prove criminal conversation. The distinction between this class of cases and those in which criminal conversation is the gist of the action is illustrated by Gilchrist v. Bale, 8 Watts, 355. The first, second, third, fourth, fifth and sixth specifications of error are dismissed.

The instruction of the court that the jury, in estimating the damages, should take into consideration the social relation of the parties, and the apparent affection existing between the husband and wife, before the separation, was free from error: Matheis v. Mazet, 164 Pa. 580. The seventh specification is overruled.

The offer of' the defendant to prove by Mrs. Keath, the wife of the plaintiff, what occurred at the time she and the défendant rode with Mr. Witmyer was improperly rejected. The testimony of Henry Witmyer, as to what occurred at the time in question, was manifestly offered for the purpose of leading the jury to infer that the relations between Mrs. Keath and the defendant were improper, and the appellee has printed the testimony of Witmyer in full in his paper-book with the other evidence which he there argues was sufficient to sustain a finding that the defendant and the wife of the plaintiff had committed adultery. That this testimony involved an attack on the character and conduct of the wife of the plaintiff would seem to be too clear for argument. The Act of May 8, 1907, P. L. 184, provides: “That in all civil actions brought by the husband, the wife shall be a competent witness in rebuttal, when her character or conduct is attacked upon the trial thereof, but only in regard to the matter of her character or conduct.” The effect of this statute is to make the wife a competent witness to rebut the attack upon her character or conduct, when her character or conduct is attacked upon the trial of an action brought by her husband. This statute does not make the wife generally competent as a witness in such actions, but only in regard to the matter of her character or conduct. The eighth specification of error is sustained. The offer of evidence, the rejection of which is the foundation of the ninth specification of error, was too broad, in that it would have permitted Mrs. Keath to testify to matters other than those regarding her own character and conduct. The ninth specification is, therefore, dismissed, as is also the tenth specification, for the same reason.

The testimony as to the relations between the defendant and the wife of the plaintiff, after the separation of the latter from her husband, was admissible for the purpose of interpreting their conduct previous to the separation. The plaintiff had offered evidence as to the conduct of the parties prior to the separation, laying a reasonable ground to infer an improper relation then existing between them, and testimony as to their relations after the separation was admissible in order to render certain the inference to be drawn from the prior conduct: Sherwood v. Titman, 55 Pa. 77.

The judgment is reversed and a venire facias de novo awarded.