McAlpin v. Baird, 166 N.W. 639

McAlpin v. Baird

166 N.W. 639 | S.D. | 1918

POLLEY, J.

This is an ¡appeal from an order overruling a ¡demurrer. The portion of the -complaint that is material on the appeal reads ¡as follows:

“That on the 15th --day of M-ay, 1916, and on -divers and other -days between that time and: -the -commencem-enit of this action, li-nichrdlimg the 28th -day of June, 1916, ¡said defendant wrongfully, wickedly, maliciously, and unjustly debauched and cann-a-lfy knew one Edina McAllphin, then and there ¡being and still being- the wife of -plaintiff, and thereby the affection of -said Edna McAlpbki far plaintiff was ali-en-ated and- ¡destroyed and the plaintiff -has -been ¡deprived -of -the -comfort, fello-w,s-h-ip, society, and ¡assistance of hi's -said wife ¡in his domestic affairs and has -been brought ¡inita dishonor and -disgrace to his ■ damage,” etc.

To ¡tlhliis -oomp-liaiiimt ¡defendant 'demurred on the grounds, first, that the c'ompllaliinit does noit 'State facts sufficient to constitute a Cause of action; -and, second, that ¡several ¡causes of action are improperly united.

Appeilant contends ¡that the complaint is b'a-d 'because it ¡do-es melt allege an intent on defendant’s part -to deprive plaintiff of the society, comfort, anld assistance of his wife, or that it was with -such intent ¡that 'defendant debaunched plaintiff’s wife and alienated her ¡affection from -plaintiff, ¡and for ¡the further reason ¡that -said complaint fails to negative the consent, connivance, or privity of plaintiff. Defendant further' contends ¡that the complaint is -baidi, because 'it fails to allege that, at the time of the alleged wrongful ¡acts, plaintiff and ¡lilis said wife were l-iving and cohabiting ¡togelthier, -or that plaintiff wa¡s¡ enjoying t-he affection, lo-v-e, comfort, society, and assistance of his- wife, 'and further contends that the 'Complaint falls to allege an-y acts by which the affection of -plaintiff’s' wife was alienated' or -destroyed!

[1] These -Contentions are wiiltholut merit. The allegation that the defendant deb-au-oh-adi -and- carnally knew plaintiff’s wife states a -cause -of ¡action- foir -dam-ages. It i-s not necessary t'o allege *183aln intent on defcmdlant’s- part to injure the plaintiff. Such intent is inferred- from the wrongful acts alleged. If iit is a fact that plaintiff -and litis wife were not living together at the time of the wrongful acts c'ompl’aimedi of, such fact could' be shown- in mitigation of damages; or if it were- a fact ' that plaintiff co-n-is'enJtied! to or eonmiyieid ‘ait said wrongful acts, such fact would -cpmstitute .a d!ef erase. The extent of tihe injury 'to the husband in -such cases 'depends- upon the relations existing between- tihe husband and wife -a,t and prior to the time of the alleged wrongful acts. If 'tihe husband -is mot enjoying ithe 'society -of Ms wife at the time olf the -acts complained of, or if, -by his own neglect or misconduct, he has aii-edatedi her affection, -such a-ct's and circumstances will -reduce the amount of damages to which- hie might otherwise be entitled. Prettyman v. Williamson, 1 Pennewill (Del.) 224, 39 Atl. 731; Bunnell v. Greathead, 49 Barb. (N. Y.) 106. But such facts are matters of defense, to be shown by defendant in-mitiigiation of 'damages, rather than to be negatived by the .plaintiff in 'his complaint.

[2, 3] The facts stated in tihe 'complaint constitute a cause of action, but ¡there is nlo merit in the contention that several causes of action- are improperly -united!. In the first -place, but one cause of action is pleaded!. But, if it were to be held ’that more than -one cause of -action is pleaded, they all grow out of the same subjecit-miaitter and m'ay be joined' in the same -action. In su'dh case 'the remedy is melt by demurrer, but by motion to state tire -different causes of action separately. Just v. Martin, 37 S. D. 470, 159 N. W. 44.

The order -appealed from is affirmed.