167 A. 816 | Conn. | 1933
The complaint in this action is in two counts, the plaintiff seeking damages in one for the alienation of his wife's affections by the defendant and in the other for criminal conversation by the defendant with her. Separate verdicts on the two counts were not asked and the jury returned a general verdict for the plaintiff to recover $4500, from the judgment upon which the defendant has appealed. He claims error in the charge as given and in the failure of the trial court to give certain requests to charge.
The trial court, in instructing the jury as to damages under the first count, charged them that the financial worth of the defendant was immaterial; that the damages awarded should be solely compensatory, unless the jury saw fit to award the plaintiff punitive damages, as to which they were properly instructed; that by damages being compensatory was meant that the plaintiff could only prevail if he had lost a substantial right through wrongful acts of the defendant; in determining the plaintiff's loss the jury should consider the relations which existed between the plaintiff and his wife, whether or not they were cordial and affectionate; and that, even though their relations were strained and no affection existed, the plaintiff might still be deprived of the possibility of affection being renewed.
The gist of an action for alienation of affections is the loss of consortium. "This is a property-right growing out of the marriage relation and includes the exclusive *209
right to the services of the spouse — and these contemplate not so much wages or reward earned as assistance and helpfulness in the relations of conjugal life according to their station — and the exclusive right to the society, companionship and conjugal affection of each other." Valentine v. Pollak,
In another respect the trial court failed to give the jury an adequate charge under the first count. In order to be a basis for a recovery by a plaintiff for the alienation of his wife's affections, the acts of the defendant relied upon, unless they were themselves wrongful, as, for instance, where the alienation results from adultery with the plaintiff's wife, must have been done intentionally, or from an unjustifiable motive, or have been persisted in with knowledge that they were doing or were likely to do a wrong to the plaintiff.Miller v. Pierpont,
If this action were one for alienation of affections alone, these errors would require a new trial. The plaintiff contends, however, that, as the verdict was a general one, they will not have that effect unless there was error also as to the charge upon the second count. In Blake v. Waterbury,
These statements of the rule require as a necessary basis for its application that the damages be the same whether the verdict was for the plaintiff upon one or the other of the counts in the complaint. In Wolcott
v. Coleman,
The two counts in this complaint allege separate and independent causes of action which, if proved, require the application of different rules for measuring damages. Under the first, as we have pointed out, the gist of the action is the destruction or impairment of the plaintiff's right of consortium by the wrongful acts of the defendant, and the measure of damages is the amount of money which will fairly compensate the plaintiff for that loss; under the second count, the cause of action is the adultery of the defendant with the *212
plaintiff's wife, and the damages recoverable are fair compensation to him for the wrong so done him, including such elements as pain, suffering, injury to his health, degradation and humiliation, to which, if properly pleaded, damages may be added as compensation for the loss or impairment of his right of consortium resulting from that adultery. Valentine v. Pollak,
As the errors in connection with the first count require a new trial, we refer to two matters likely to arise again. The defendant pleaded the statute of limitations to each count. The trial court properly instructed the jury that the counts fell within the statute which fixes a limitation of six years for an action founded upon a tort unaccompanied with force and where the injury is consequential. General Statutes, § 6006; Bassett v. Bassett,
In both counts the plaintiff alleged a loss of consortium and upon proper proof might have been entitled to recover for that loss under each. In such a situation an instruction to the jury should be given which would warn them against giving damages under both for the same loss, lest the plaintiff recover twice for the same thing. If the plaintiff had been completely deprived of that right before any adultery took place, he could not recover damages for loss of consortium under the second count; but if his loss of it was due in part to wrongful acts of the defendant alleged in the first count and in part to the adultery, he would be entitled to recover under each compensation for the loss due to the acts alleged in it. *214
There is error, the judgment is set aside and a new trial ordered.
In this opinion the other judges concurred.