| Vt. | Jan 9, 1913
This is case for alienating the affections of .plaintiff’s husband. It was proper to allow Cahee to testify to the value of the defendant’s house, for exemplary damages were claimed. Rea v. Harrington, 58 Vt. 181" court="Vt." date_filed="1885-10-15" href="https://app.midpage.ai/document/rea-v-harrington-6582689?utm_source=webapp" opinion_id="6582689">58 Vt. 181, 188, 2 Atl. 475, 56 Am. Rep. 561.
It was also proper to allow the witness Bresee to say that the occurrence to which he testified about the defendant’s motioning plaintiff’s husband into Baker’s drug store and there drink
The plaintiff’s husband was a witness for the defendant, and testified that his relations and associations.with her were merely the friendly relations and associations of a gentleman and a lady, and entirely proper in all respects, and always with due regard to propriety. He also testified that he took a lease of defendant’s barn at one time, and kept his horses there. On cross-examination he said that this suit was pending when he took the lease .and moved in his horses, which, it appeared, he took care of himself mornings and nights. The cross-examiner was then allowed to elicit from him that he-knew when he took the lease that there had been and was public discussion and sentiment about his associations with the defendant, and that he testified about a year after he brought a petition for divorce against his wife, — which was while this suit was pending, — that said publicity had decreased his business more than threefold. Large scope is allowed to cross-examination, the extent of it in a given case being left largely to the discretion of the trial court. 2 Wig. Ev. §944; Stevens v. Beach, 12 Vt. 587, 36 Am. Dec. 359; Hathaway v. Crocker, 7 Met. 266. Here the cross-examination was well within the discretion of the trial court if not within the right of the defendant, and so no error.
The defendant called the officer who served the petition for divorce on the plaintiff, and showed by him a conversation he had with her at the time in the house and the presence of Miss Griswold. The plaintiff called Miss Griswold in rebuttal to testify to that conversation. The defendant objected that the officer could not be impeached without first inquiring of him about it. The officer not being present at the time, the court said that the witness might be examined and the officer nailed later if necessary, and thereupon the witness was examined. Later, the officer was called by the plaintiff and examined by both sides as to what was said. The course taken by the court was entirely discretionary, and so no error here.
The defendant seasonably moved for a verdict, because there was no evidence tending to support the declaration; none tending to show that defendant interfered, or in any way undertook or tried, to alienate the affections of plaintiff’s husband; and because the entire evidence showed that the plaintiff was entirely estranged from her husband before the commencement of his acquaintance with the defendant. This motion was rightly overruled. We take no time with the last ground of it, for if true, it would not defeat recovery but go only in mitigation of damages. Fratini v. Caslini, 66 Vt. 273" court="Vt." date_filed="1894-01-15" href="https://app.midpage.ai/document/fratini-v-caslini-6584245?utm_source=webapp" opinion_id="6584245">66 Vt. 273, 29 Atl. 252, 44 Am. St. Rep. 843; Lewis v. Roby, 79 Vt. 487" court="Vt." date_filed="1907-01-19" href="https://app.midpage.ai/document/lewis-v-roby-6585721?utm_source=webapp" opinion_id="6585721">79 Vt. 487, 65 Atl. 524, 118 Am. St. Rep. 984.
The other ground of the motion is not well founded, for the testimony on the part of the plaintiff clearly tends to show what the motion says it does not, namely, that the defendant' did interfere, and did undertake and try, to alienate the affections of plaintiff’s husband.
The defendant requested a charge that in order to recover it -must affirmatively appear that she was the seducer and enticer, and that the plaintiff could not recover if it appeared that her husband enticed her into unlawful ■ relations with him. The defendant excepted for noncompliance with this request, .and now says that the court applied it only to “enticing, inducing, and persuading,” whereas she had a right to have it cover seducing also, claiming that unless she was the acting and seducing party there could be no recovery. But “enticing, inducing, and persuading” by the defendant were certainly sufficient as to all the elements of recovery except the “unlawful relations” mentioned in the request, which we take to mean criminal conversation, and whether as to those relations, seduction by the defendant was necessary to recovery will be considered later.
The defendant also excepted to the failure to charge as requested that intentional alienation must be shown. But the charge shows a substantial compliance with this request. She also excepted to the failure to charge as requested that her acts that caused the alleged injury must have been malicious. This
The declaration alleges adultery as one means of alienation. The court charged without qualification that if adultery was found, the plaintiff should recover, as the law would presume alienation. To this the defendant excepted generally, and claims that notwithstanding the allegation of adultery, the action is purely for alienation and not at all for crim. con., but that the court “mixed” the law of these two actions, whereas it should have applied only the law relative to actions for alienation, and therefore should have told the jury that the plaintiff could not recover on the ground of adultery unless the defendant was the seducer, which the court did not do, but left it in :a way that the plaintiff might recover on that ground though her husband was the seducer and the defendant the seduced, which might have been proper, it is said, had the action been for criminal conversation, — if such an action can be maintained against a woman, which is denied arguendo, — for there the seduction, the act itself, is the gist, while here the loss of consortium is the gist, and therefore the defendant must be the seducer, otherwise no protection is afforded to a woman who is likely to have been overcome by persistency or.force and without intent on her part.
It is to be noticed that the defendant is not claiming that this action cannot be maintained against her at all on the ground of criminal conversation, but only that it cannot be without showing that she was the seducer as to that, any more than it can be on the other ground alleged without showing that she was the entieer, inducer, and persuader as to that. So the question is,
■ on this point, and the only question, whether it was necessary to recovery on this ground that it should be found that she was in fact the seducer.
It is claimed in support of the affirmative of this proposition that an action for alienation of affections is absolutely different and distinct from an action for criminal conversation, and that all text-books and authorities treat them as entirely different in nature, and some cases are cited to that effect. But however this may be elsewhere, it is not so here. Thus, in Daley v. Gates,
It remains to consider whether it makes any difference in law whether the defendant was the seducer or the seduced. We think it does not, for seduction, unlike rape, does not preclude consent, but gains it by persuasion, procurement, and enticement, leaving the seduced a willing participant in the wrong; and the act of adultery itself, subject to all the consequences that the law 'attaches to it, one of which is, in actions like this, that the loss of consortium necessarily results from it, regardless of which party is the seducer; and thus is the cause of action perfected, and the right of recovery established. Lellis v. Lambert, 24 Ont. App. 653, 663.
In Houghton v. Rice; 174 Mass. 336, 54 N.E. 843" court="Mass." date_filed="1899-10-19" href="https://app.midpage.ai/document/houghton-v-rice-6426850?utm_source=webapp" opinion_id="6426850">54 N. E. 843, 47 L. R. A. 310, 75 Am. St. Rep. 351, one woman sued another woman for alienating the affections of her husband. On demurrer the court held that the declaration was bad in substance at common law if the action was by the husband against another man, and that no statute gave the wife any greater right than the husband had in actions of that nature, which means, of course, that the substantive law of the case is the same whichever sues. In speaking of the absence of an allegation of adultery as a cause, the court said that when the husband sues, the allegation is, debauehment and carnal knowledge of the wife; that alienation of her affections is mere matter of aggravation, and the loss of consortium the actionable consequence of the injury; that the adultery is the essential fact to be proved, without which the action cannot be maintained. In Lellis v. Lambert above cited,
It is manifest, therefore, that the only difference between alienation by persuasion and alienation by adultery is, that in the former you must prove resultant loss of consortium, while in the latter the law conclusively presumes it.
In Hart v. Knapp, 76 Conn. 135" court="Conn." date_filed="1903-10-07" href="https://app.midpage.ai/document/hart-v-knapp-3319555?utm_source=webapp" opinion_id="3319555">76 Conn. 135, 55 Atl. 1021, 100 Am. St. Rep. 989, one woman sued another woman for alienating the affections of her husband by committing adultery with him. The defendant claimed in bar of recovery that she did not seduce plaintiff’s husband but that he seduced her. But the court held that that made no difference, and the plaintiff had judgment; and on a ground from which it may be deduced that carnal knowledge of the husband is as much a civil injury to the wife, as carnal knowledge of the wife is a civil injury to the husband.
In Scott v. O’Brine, 129 Ky. 1, 110 S. W. 260, 16 L. R. A. (N. S.) 742, 130 Am. St. Rep. 419, the court criticised Hart v. Knapp as being contrary to the weight of authority. But it had no occasion to say anything about that case, for adultery was not involved in the case before it, nor did the court take note of the difference above pointed out between alienation by persuasion and alienation by adultery.
Judgment affirmed.