Kuhn v. Hemmann

59 N.Y.S. 341 | N.Y. App. Div. | 1899

Barrett, J.:

It is well settled that a wife may maintain an action against one who has enticed her husband from her or deprived her of the comfort of his society. (Bennett v. Bennett, 116 N. Y. 584; Jaynes v. Jaynes, 39 Hun, 40; Baker v. Baker, 16 Abb. N. C. 293; Breiman v. Paasch, 7 id. 252; Westlake v. Westlake, 34 Ohio St. 621.) The defendants evidently misconceived the nature of the present action, for they contend that it cannot be successfully maintained because of a lack of evidence to show that they had any knowledge of the improper relations existing between their daughter and plainstiff’s husband until the child was born. They also assume that the entire wrong to the plaintiff was consummated when Kuhn entered upon his adulterous life with Elsie Hemmann, and that no act of theirs subsequent thereto could add to the plaintiff’s injury. They insist that the plaintiff’s only remedy is, a possible action for damages against their daughter. Their contention overlooks the fact that this action is not to recover damages sustained by the plaintiff as a result of the criminal conversation of her husband with Elsie Hemmann, but for the loss of consortium. This is plainly the gravamen of the complaint. The damages claimed are alleged to have been sustained by reason of the plaintiff’s deprivation—resulting from the defendants’ acts and inducements — of the “ comfort, society, aid, assistance, affection, support and maintenance’’ of her husband. Mere marital infidelity would not suffice to maintain such an action, for marital infidelity alone did not cause the wrongs of which" the plaintiff is now complaining. There is no evidence whatever to show that she was, in any way, deprived of the “ comfort, society, aid, assistance, affection, support and maintenance” of her husband up to the time when she left for Europe. It is true that he was then, and had been for some time previous thereto, maintaining a mistress with whom he passed a portion of his time. But of this the plaintiff was in complete ignorance. He still continued to live with and support her, and he ostensibly fulfilled all his marital relations. It is clear, then, that there was, up to this time, no such alienation of affections as would have entitled the plaintiff to maintain an action like the present against these defendants. (Romaina v. Decker, 11 App. Div. 22; Buchanan, v. Foster, 23 id. 544; Hodecker v. Strickler, 39 N. Y. Supp. 515; affd., 20 App. Div. 245.)

Thus, the only injury which plaintiff suffered up to the time of her departure for Europe, was the moral injury resulting from the violation by her husband of his marital allegiance. . It is for the additional wrong which the defendants subsequently caused to be inflicted upon her that she brings this action. This additional wrong consisted in the entire abandonment of the plaintiff by Kuhn, his entering into a- bigamous marriage with the defendants’ daughter, and his taking theTatter to the very apartments in the defendants’ house which he had previously occupied with the plaintiff. This was the loss of the “ comfort, society, aid, assistance, affection, sup-" port and maintenance ” complained of by the plaintiff, and that loss, and the defendants’ responsibility therefor, were sufficiently shown, at least jyrwna, faoie. The plaintiff was living with her husband in apparent peace and contentment up to the time of her departure for Europe. Some time previous thereto the defendants talked of taking steps to get her out of the way. This was because of Kuhn’s relations with their daughter, of which they were fully aware. Their admissions were given in evidence to the effect that they had told Kuhn that they would pay for a divorce and set him up in business if. he would marry their daughter; and that they furnished him the money to send the plaintiff to Europe to get her out of the way. It was proved, too, that they connived at and encouraged the bigamous marriage with their daughter. We also find that they freely told various people that they considered Kuhn’s lawful wife a common woman, much beneath him, and that they were doing "all in their power to separate him from her. How well they succeeded has already been shown. If they had taken no steps at all in the matter Kuhn might never have wholly abandoned his wife. At any rate, there was enough evidence to warrant the inference that they induced Kuhn to send her to Europe, with the idea of eventually getting rid of her entirely, and that by their influence and inducements they finally accomplished this latter purpose. Upon all the testimony it was certainly a question for the jury whether .their wrongful influence and inducements were the cause of Kuhn’s finally abandoning the plaintiff. (Remsen v. Hay, 14 Wkly. Dig. 443.) They .cannot escape the consequences of their acts upon the plea of parental solicitude. While we may sympathize with them as parents,, we cannot justify the means which they adopted to effect a partial rehabilitation of their daughter at the expense of an innocent wife.

The judgment should be reversed and anew trial ordered, with costs to the appellant to abide the event.

Rumsey and Patterson, JJ., concurred: Van Brunt, P. J., and Ingraham, J., dissented.

Judgment reversed, new trial ordered, costs to appellant to abide event.