77 N.J.L. 132 | N.J. | 1908
The opinion of the court ivas delivered by
This is a suit for the alienation of a wife's affections. At the Circuit a verdict for the plaintiff was rendered for $750, whereupon this rule to show cause was allowed.
The testimony shows that the defendant was a frequent visitor at plaintiff’s house, being often there in the daytime and frequently remaining all night when the husband was not at home; that previous to the coming of the defendant, and his attentions to the wife, the relations existing between the husband and wife were friendly and affectionate; that the defendant, after introduction to the plaintiff by the wife, became friendly with the husband, so much so that the defendant often remained over night with the plaintiff, and, according to the plaintiff’s own testimony, more than once the defendant slept in the same bed with the plaintiff and his wife, upon plaintiff’s invitation; that defendant took the wife out driving; that in the month of October, 1906, there arose a quarrel between the plaintiff and his wife and the defendant, after which plaintiff left his home and went to work, leaving his wife with the defendant, and when he re
There was sufficient evidence in the case from which the jury might infer that the defendant had alienated the affections of the wife. It also appeared that many of the acts of the defendant and his wife were known to the plaintiff, and sufficiently so to indicate that the husband consented to the alienation.
The evidence of the defendant shows that he was a friend of the family of the wife before she married and frequently called at her house; that after her marriage she and her husband remained with her parents, the defendant still continuing to call there; that after two or three years the husband and wife started housekeeping, and the defendant, on the invitation of the husband, continued to visit them. The husband was during these visits sometimes at home and sometimes he was not; but he was always at home nights and frequently invited the defendant to remain over night, and that he, at plaintiff’s request, slept in the same room with plaintiff
Whatever inferences may be drawn from the plaintiff’s case as to the enticement of the wife to leave her husband is completely overthrown by the testimony of the defendant. The substance of the case is that the wife was taken to Hoboken by the husband and put to work by him in Mr. Kurtz’s house where he stayed with her; that she was earning there at first, while the husband remained, her living and clothing, and after the husband left and returned to Hackensack she was paid $25 a month. The preponderance of evidence is in favor of the theory that the husband was perfectly willing that she should remain there and work.
The plaintiff, to sustain his case, is obliged to show by a preponderance of evidence that the defendant wrongfully and willfully attempted to alienate the affections of the consort and to deprive plaintiff of the consort’s society, that such attempt was successful and that the plaintiff was not a consenting party. Van Olinda v. Hall, 88 Hun 452; Reading v. Gazzam, 200 Pa. St. 70.
In Prettyman v. Williamson, 1 Pennew. (Del.) 224, 234, it was held that the consent of the husband to the act complained of is a bar to an action for alienating the wife’s affections. citing Bunnell v. Greathead, 49 Barb. 106. In the
The testimony of the plaintiff shows that he consented to the very acts calculated to inflict upon him the injury tor which he now seeks damages.
The rule to show cause must be made absolute.