Knapp v. Wing
47 A. 1075
Vt.
1900
Check Treatment
Tyler, J.

I. The declaration states a cause of action, for it alleges loss of consortium as the consequence of the defendant’s wrongful acts, and the plaintiff can maintain an action in her own name under Y. S. 2647. Story and wife v. Downey and wife, 62 Vt. 243. The marriage contract between the plaintiff and her husband conferred upon her the right to his consortium, and the deprivation of that right by the acts of the defendant was a wrong for which the law should afford a remedy.

It was a maxim of the common law that for every wrong the law provided an adequate redress; but the law was consistent in denying to the wife an action against another woman for debauching her husband, or for alienating his affections from and depriving her of his society and support, for she had no legal existence separate from her husband, and consequently could not hold separate property. If such an action had been maintainable, it must have been brought in the husband’s name, and a judgment, if recovered, would have been for his benefit, because of the theory that *337the wife’s legal existence was merged in that of her husband, and that she had no property in his society and assistance. It is now nearly a universal rule in those states in this country, where the common law disabilities of married women have been removed, that this kind of action is maintainable. It is said in Cooley on Torts, 228, note: “We see no reason why such an action should not be supported, when, by statute, the wife is allowed, for her own benefit, to sue for personal wrongs suffered by her.” Bigelow on Torts, 153; Bishop on Mar. and Div. sec. 1358.

It was said by the court in Daley v. Gates, 65 Vt. 591: “If an action of this kind can be maintained by a wife, concerning which we are not called upon to express an opinion, the cause of action is the wrongful deprivation of the plaintiff of that to which she is entitled by virtue of the marital relation, namely, the consortium, or the conjugal society, affection, aid and assistance of her husband.” The only question in that case was whether a new count was for the same cause of action as the original declaration, which charged that the defendant had enticed away the plaintiff’s husband per quod amisit, the new count charging criminal conversation, with the same per quod, and it was held to be for the same cause and for the reason that the injury complained of in each count was one and the same, namely, loss of consortium, the new count being merely the statement of another way in which the injury was committed, the identity of the cause of action being preserved. This doctrine is fully recognized in Fratini v. Caslini, 66 Vt. 273.

It is denied in Doe v. Roe, 82 Me. 503, and in Morgan v. Morgan, 92 Me. 190, that the wife is entitled to this action, even in case of her husband’s adultery, and it is held that the action is allowed to the husband for that cause only upon the ground that the wife’s infidelity may impose upon her husband the support of another man’s child and throw suspicion upon the legitimacy of his own children. This holding we are not inclined to follow.

*338Mr. Freeman, in his notes to Clow v. Chapman, 125 Mo. 101, 46 Am. St. R. 468, says that Maine and Wisconsin stand alone in maintaining the above doctrine, and he states the general rule, that the action is maintainable when there is loss of consortium, and that it is as available to the wife, unless she is under the common-law disability, as it is to the husband. The law is well stated in Sehoul. on Husb. & Wife, sec. 65: “ To entice away, or to corrupt the mind and affections of one’s consort is a civil wrong for which the offender is liable to the injured husband or wife.” See Foot v. Card, 58 Conn. 1, 18 Am. St. R. 258; Seaver v. Adams, 66 N. H. 142, 49 Am. St. R. 597; Gernerd v. Gernerd, 185 Penn. St. 233, 66 Am. St. R. 646 and notes.

II. The plaintiff introduced evidence tending to show that the defendant-told the plaintiff’s husband that the plaintiff was not fit to be his wife, nor the mother of his children, and made other derogatory statements to him about her. The defendant offered evidence tending to show that on an occasion the plaintiff went to her house and struck her a severe blow in the face while the defendant was standing in her door talking with the plaintiff’s husband, and that a week later the plaintiff went to the defendant’s house and assaulted her with a stool and injured her, and that the conversation which the plaintiff’s evidence tended to show took place that evening in the defendant’s house between the defendant and the plaintiff’s husband was after the assault with the stool and while the defendant was suffering- from it; that the conversation was not what the plaintiff claimed it was, and that it was in consequence of that assault. The defendant was allowed to testify, without objection, to the first assault. Defendant’s counsel then asked the defendant the question, “ Did anything happen during the coming week ?” which the court excluded. Although the defendant was not permitted to describe the assault with the stool, in detail, she did subsequently testify that after it occurred, on the same evening, she sent for the plaintiff’s husband and had the conversation with him which the plaintiff and her witness testified to have overheard; that she *339did not then say what the plaintiff had testified to, but that she did advise a separation by means of which a divorce might subsequently be obtained, and that what she then said was from fear of the plaintiff caused by the assaults. The defendant was therefore deprived of no right by not being permitted to answer the question above recited.

III. It was not error to admit evidence tending to show that the defendant attempted to use the influence of her property to alienate the husband from the wife, and in that connection to show the amount of property she possessed.

IY. The testimony of Mrs. Farr, in substance, that the defendant said to her, when the plaintiff’s husband was not present, that the child was illegitimate, was admissible as tending to show malice.

Y. The plaintiff’s evidence tended to show that after her return from Burlington the defendant made remarks to the plaintiff’s husband about the paternity of a child to which the plaintiff subsequently gave birth ; that the defendant asked him if he had roomed with the plaintiff so that he had an opportunity to be the father of the child, and that upon his replying that he had she said he could not even then be sure it was his. The apparent purpose of this evidence was to have the jury understand that the defendant implanted in the husband’s mind the idea that the child was illegitimate. The defendant then proposed but was not permitted to cross-examine the plaintiff with a view to show by her that the legitimacy of the child had been a subject of correspondence between the plaintiff and her husband while she was in Burlington. It was clearly competent for the defendant to cross-examine the plaintiff upon this subject and to show by her, if she could, that the defendant did not originate the charge of the child’s illegitimacy, but that the plaintiff and her husband had discussed the matter some time previously. The ruling deprived the defendant of a legal right. The plaintiff claimed that this alleged slander was one means used by the defendant to separate her husband from her, and it was compe*340tent to cross-examine her to show that the story had a prior origin, and that the husband had knowledge of it prior to the statements made by the defendant.

It was held in State v. Nooks, 70 Vt. 247, that, “ to reserve an available exception to the exclusion of the testimony of a witness, an offer must be made stating the testimony the witness will give if permitted to testify, and an exception taken to the exclusion of the evidence so offered. An exception to the exclusion of a question only, is not sufficient.” This rule applies to the examination of a party’s own witness for the reason that he is supposed to know what his witness will testify to. But, to be compelled to state what one expects to show by the cross-examination of his adversary’s witness would often defeat the purpose intended by putting the witness on his guard. Besides, the examiner does not always know what he may reasonably expect to bring out in the cross-examination of a witness. The rule is and should be that the cross-examiner is not bound to explain the relevancy of the answer expected. 8 Ency. of Pl. & Pr. 114.

The plaintiff’s counsel contend that if the correspondence was material, the letters should have been produced as the best evidence, and they raise the further point that no offer was made to prove a fact. The correspondence itself, was not material. The question did not call for the contents of letters, but it asked upon what subject they were written. The previous discussion between the plaintiff and her husband, implying knowledge, was the fact that the defendant sought to show.

For the error in denying the right to cross-examine,

The judgment is reversed and cause remanded.