114 Wis. 550 | Wis. | 1902
Lead Opinion
This action was commenced November 23, 1899, to recover damages for criminal conversation with the plaintiff’s wife, alleged to have been committed at Eau Claire at divers times between September 15, 1899, and November 18, 1899. The complaint alleges the marriage of the plaintiff to Jennie E. Smith, March 8, 1891, and that from the time of such marriage to the time of committing the acts complained of they lived happily together as husband and wife; that between the dates mentioned .the defendant wickedly and maliciously seduced, debauched, and criminally knew the plaintiff’s wife, Jennie E., and thereby deprived the plaintiff of her affections, society, and assistance, to his great distress of body and mind and damage. The answer admits the marriage, and that the plaintiff and his wife had lived together as husband and wife, but otherwise denies each and every allegation of the complaint. At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his compensatory damages at $6,000, and found that the plaintiff was entitled to recover $4,000 for punitory damages. In pursuance of an order of the court, judgment was entered thereon in favor of the plaintiff for $10,000 damages, and costs as taxed. From that judgment the defendant appeals.
The evidence on the part of the plaintiff tends to prove that his wife was twenty-seven years of age at the time of the trouble in question; that he was ten years older; that they had lived together happily as husband and wife for eight years; that in the winter of 1898-99, the plaintiff visited his old home in Maine for a couple of months; that during that time an intimacy sprung up between his wife and the defendant,
In admitting and excluding evidence in such a case, regard is always to be had to the nature of the action. As stated by a standard text-book, to recover it is essential for the plaintiff to prove the fact of marriage and the fact of adultery.
“The essential injury to the husband consists in the defilement of the marriage bed. The loss of the consortium is presumed, although the wife may have herself been the seducer, or may not have been living with the husband.”, 8 Am. & Eng. Ency. of Law (2d ed.) 268.
The same work declares that: “The right of the husband to recover is not affected, except in the matter of damages,
1. Error is assigned because tire court admitted testimony that the plaintiff had procured a divorce from his wife. The evidence to that effect seems to have been given without any objection. The plaintiff, having testified that he did not live with his wife after the occurrence of November 18, 1899, was asked this question: “Did you get a divorce from her after that ?” Counsel for the defendant at first objected, but before the court ruled on the question he withdrew his objection, and the plaintiff answered in the affirmative, and then continued, without objection, by saying that, “I got the divorce on the ground of adultery with E. 8. Hammond.” In reply, counsel refer to the fact that during the opening of the plaintiff’s counsel to the jury, the court had ruled, against objection, that it was proper for him to state that the plaintiff had “applied for and obtained a divorce from his wife.” Assuming that timely objection and exception was taken, the question recurs whether it was error to admit such testimony. Counsel cites no authority in support of his contention. The admissibility of such evidence seems to be unquestioned, and •is generally assumed. Thus it is held that “an action of this kind may be maintained by the husband after a decree of divorce procured by the wife upon a cause of action accruing before the divorce was procured.” Wood v. Mathews, 47 Iowa, 409. To the same effect: Michael v. Dunkle, 84 Ind. 544; Wales v. Miner, 89 Ind. 118; Johnson v. Allen, 100 N. C. 131, 5 S. E. 666; Prettyman v. Williamson, 1 Pennewill,
In one of the cases cited the criminal intercourse 'with the wife was accomplished after her separation from her husband. In another it was held that the complaint for criminal conversation need not allege the means by which the seduction of the wife was effected, nor that she was still the plaintiff’s wife, nor that the defendant knew her to be such. In some of the cases it is held that tire divorce might be considered in mitigation of damages. In some cases it is held that after a divorce the wife is a competent witness for the husband to prove the charge of adultery. Ratcliff v. Wales, 1 Hill, 63; Wottrich v. Freeman, 11 N. Y. 601; Dickerman v. Graves, 6 Cush. 308. This is in harmony with the ruling of this court. Bigelow v. Sickles, 75 Wis. 427, 44 N. W. 761; Brown v. Johnson, 101 Wis. 663, 77 N. W. 900. But that where there is no divorce she is incompetent as a witness to-prove the criminal intercourse. Carpenter v. While, 46 Barb. 291. Under these authorities the wife would have been a competent witness had she been living. We must hold that, such evidence is admissible, and that the remark of counsel that he would prove the fact was permissible.
2. The plaintiff proved by his wife’s older sister, without objection, that his wife was twenty-seven years of age when she died. No motion was made to strike out such evidence. Error is assigned because the court then allowed the plaintiff to prove, against objection, that she died March 24, 1900, at Daytona, Florida, and that her body was brought to Eau Claire and buried. There seem to be very few adjudications directly upon the question. Counsel for the defendant cites no authority in support of his contention. Counsel for the plaintiff cite one case in which it was held that: ®
“Where a defendant has debauched the wife of the plaintiff, the right of action of the latter is complete, and a recovery by him is not defeated by her death before action brought.” Yundt v. Hartrunft, 41 Ill. 9.
“If in an action for adultery it appear that the wife has died since the commencement of the action, the jury should give damages for the loss of the society of the wife from the time of the discovery of the adultery to the time of the wife’s death, and also for the shock to the feelings of the husband; and this is so though it appear that there was no suspicion of the wife’s infidelity till she was on her deathbed, and though the husband continued to treat her kindly up to the time of her death.” Wilton v. Webster, 7 Car. & P. 198, 32 E. C. L. 491.
In that case the wife was in the last stage of consumption. On December 4, 1833, she “made' a declaration of her guilt to her husband, which was afterwards confirmed by a declaration of the defendant himself,” who had been her attending physician. She died twenty days after her confession. It was conceded in that case that the plaintiff was entitled to a verdict, and that the only question was as to the amount of the damages. Such proof of death naturally tended to limit and cut down the damages sustained. We do not find that this English case has ever been criticised or questioned. The admission of such evidence in the case at bar simply went to the question of damages. It might tend to diminish the damages, but not to increase them. Certainly, the admission of such testimony could not prejudice the defendant. Besides, as the wife would have been a competent witness had she been living, it was permissible, as held by some courts, to account for her absence as a witness by showing that she was dead. People v. Hovey, 92 N. Y. 554, 559; Carpenter v. Pennsylvania R. Co. (Sup.) 43 N. Y. Supp. 203; Hall v. Austin, 73 Minn. 134, 75 N. W. 1121.
3. Error is assigned because there was an offer to prove by the plaintiff that after the divorce his wife, Mrs. Lee, came to her death by suicide. Objection being made, and after
4. There are twenty-three exceptions to the charge. One of them is to the charge as a whole, for the reason that it assumes the existence of facts in dispute, but without specifying any particulars. Such exception is not entitled to consideration. Several portions of the charge to which such exceptions are taken are favorable to the defendant. The brief of counsel for the plaintiff, after referring to the twenty-three exceptions in the printed case, simply, states that the portion of the charge contained in eight of those exceptions mentioned “is erroneous in that it was repeatedly assumed by the court that the defendant was guilty of the wrong complained of, and it was only left to the jury to fix the damages.” The portion of the charge thus referred to relates wholly to the subject of damages, and is preceded by this language: “If you find from the evidence that the defendant carnally knew and debauched plaintiff’s wife without the aid or procurement of plaintiff, then you will consider and determine the amount of damages to be assessed against the defendant.” The court had also previously charged the jury that, if they found that the defendant did not debauch and carnally know the plaintiff’s wife, then that would end their consideration of the case, and they would return a verdict of no cause of action in favor of the defendant; and that they should not find for the plaintiff unless they were convinced from all the evidence of the defendant’s guilt to a reasonable certainty. Compensatory
5, Error is assigned for refusing to charge the jury as requested. The first instruction requested was to the effect that, if the jury found from the evidence that the plaintiff “knew that his wife was about to meet the defendant for the purpose of having criminal intercourse with him, and by words or acts encouraged her to do so,” then they could “award him no damages on account of the commission of the act so encouraged by him.” That instruction was given in the general charge. Error is assigned because the court refused to instruct the jury that: “If you find from the evidence that the defendant did have sexual intercourse with the plaintiff’s wife, and also find that prior to such intercourse the plaintiff had reason to know his wife was guilty of improper conduct with the defendant, suspected her of it, and yet took no means to prevent an intercourse between them, you may consider such omission on his part in determining what, if any, damage he is entitled to recover from the defendant for seducing his wife.” The law seems to be well settled that the husband •cannot “be charged with connivance or consent merely because he was negligent in respect to his wife’s conduct, and so per
6. Error is assigned for permitting the plaintiff’s counsel, in opening the case to the jury, to make improper statements..
7. Error is assigned for permitting the plaintiff’s counsel to make improper remarks in his opening argument to the jury and refusing to rule on the defendant’s objections thereto. One of such remarks complained of consisted in stating, in effect, that the defendant had, by a subpoena,, called for the production of “all letters or copies of letters or writings purporting to have been written or by” the plaintiff “claimed to have been written by H. S. Hammond to Jennie S. Lee,” and then, after the production of the three letters mentioned in the statement of facts, the defendant testified that he supposed there were some such letters, after having denied that, he wrote the three letters to the plaintiff’s wife so mentioned in the statement of facts; and from such admission it was argued that the defendant knew all the time that he had written the letters. The remarks, as well as the defendant’s testimony, upon which the same were largely based, are too voluminous to be given here; but we think they were in the line of legitimate argument, and the exception to them must be overruled.
8. Error is assigned because in the closing argument on the part of the plaintiff it was stated that Mrs. G., whose dep
“Now, gentlemen of the jury, I don’t wish to put any false construction upon the evidence. I believed that when he made this statement that she was in a house of assignation, and when he produced the deposition to prove that she was in that house I believed it was the house of assignation he referred to.”
The court then further corrected him by saying, in effect, that the statement of defendant’s counsel was that on the night of September 29, 1899, the plaintiff’s wife was in a house of assignation, and that the testimony was that she was in Mrs. G.’s house in 1893. The trial was manifestly exciting, and the feeling intense. There was apparently an honest misunderstanding of the statements, made and the evidence. But we fail to find in the circumstance any reversible error.
9. Exception is taken because in the closing argument on the part of the plaintiff counsel said, “Hammond is a seducer and murderer.” The defendant objected “to the statement of counsel that the defendant is a murderer.” The court observed: “The objection is sustained. There is no evidence upon which any such statement can be based.” The defendant then requested the court to further rule that such remark “was a breach of propriety on the part of counsel,” whereupon the trial judge observed, “The court has already ruled.” The evidence was undisputed that Mrs. Lee died in Florida while the defendant was in Eau Claire. There was some claim from the appearance of her body, when it reached Eau Claire, that she died by her own hand; but there was no pretense that the defendant killed her. Under the circumstances the most counsel could reasonably have meant
By the Court. — The judgment of the circuit court is affirmed.
Concurrence Opinion
I find myself unable to concur in a judgment of affirmance, because I cannot persuade myself to palliate, excuse, or believe unprejudicial the conduct of the plaintiff’s attorneys in first impressing upon the jury by questions the fact that plaintiff’s wife had, after the divorce between them, committed suicide, and then in vehemently asserting to the jury in closing argument that defendant was a murderer. It seems to me that nothing could have been more likely to inflame the prejudices, and at least improperly rouse indignation and enhance damages^ than such conduct as this. The court correctly ruled that after the divorce between plaintiff and his wife her life or death was not a material consideration, and yet to the nonlegal minds of the jury it could not but have been cogent at least to awaken indignation, and, as I think, effective in bringing about this very large verdict
