145 A. 94 | Pa. | 1928
Argued October 2, 1928. Defendant, in an action for alienation of affections and criminal conversation, offered to prove as a defense and in mitigation of damages (a) that prior to the injury *211 complained of plaintiff and his wife were conducting a house of ill repute, and (b) the reputation, for unchastity, drunkenness, gambling and tippling, of the persons who visited the house.
The court below rejected the evidence, holding that, while the reputation of the plaintiff and wife were in issue, the court knew "of no case in which the reputation of a house was admissible" to show character except in those cases where it was the point at issue, as, for instance, an indictment for keeping a bawdyhouse.
The grounds for recovery in an action for criminal conversation are the violation of the right of consortium, loss of services, injury to social position, impairment of family honor, and mental suffering coming from the spouse's infidelity: Matheis v. Mazet,
The nature of the evidence to attack plaintiff's case may be either actual or reputed character, or both. In Pennsylvania, in an action for seduction, where the damages recoverable are much the same, we early held that neither actual character nor particular acts could be inquired into, and that the assault on character must be made through reputation. "A person may have a very good reputation __________ notwithstanding acts of indiscretion": Hoffman v. Kemerer,
Acts of infidelity on the part of the participating spouse before that complained of in the action are relevant to the claim for damages embraced in mental suffering: Zitzer v. Merkel,
The offer here was to show that plaintiff kept a bawdyhouse. A character may be imposed or acquired through the conduct of a business or engagement in certain pursuits. Thus we have held that the fact of adultery may be presumed from one's frequenting a bawdyhouse. The offer was to show lack of reputation of the proprietor-plaintiff and his wife, and a particular act of immorality. The offer, of course, was not available as a defense; the fact that plaintiff is of a general dissolute character will not be a bar to the action: Silvernali v. Westerman, 2 Kulp 7. While the keeper of a bawdyhouse would not have much of a reputation, that fact would not excuse defendant from all liability for debauching his wife. But the offer was competent to lessen recovery for loss of his wife's companionship and injury to his social position (Norton v. Warner, supra); it is quite similar to acts of unchastity or infidelity in its bearing on mental suffering. A man who conducts a place for prostitution should not be so keenly hurt if his wife happens to be *213 enmeshed in his own business. He certainly offers her every facility for it. But in fixing the punishment defendant is to receive, it should be tempered very much by the actual character of plaintiff and his spouse, and the fact that their marital rights are regarded by them as being of little or no value.
The danger from collateral issues in admitting particular acts as evidence is to be expected for the reason the action contemplates such testimony in relief of damages; and as for plaintiff being surprised at the character of the evidence, it was perhaps no greater than defendant's surprise when served with the summons from one openly engaged in the business of unchastity, — running a bawdyhouse; but as the action is predicated on infidelity and character, the evidence offered, if true, should have been anticipated.
The second part of the offer, that is, to show the reputation of persons who visited the house, is not good. The reputation of the house as a bawdyhouse is the point to be established; it should stand out in the neighborhood as such, without the necessity of establishing it by the reputation of persons who visited the house as being of ill repute for chastity, gambling, etc. It would be carrying the doctrine of unoffending collateral issues too far to permit the reputation of frequenters to be offered. The offer was not to show that the spouse consorted with persons of unchaste repute (30 C. J. section 1064, pages 1164, 1165; Smith v. Hockenberry,
The court below was in error in not receiving the evidence contained in the first offer.
The judgment is reversed with a venire facias de novo. *214