29 N.Y.S. 37 | New York Court of Common Pleas | 1894
Lead Opinion
Repeated scrutiny of the testimony adduced on the trial is convincing that the facts afforded no justification' for the recovery, and that the verdict was not the result of temperate and dispassionate deliberation on the part of the jury. It is therefore the prerogative, as well as the duty of the court, at general term, on appeal from an order denying a motion for a new trial, lest justice should be perverted, to set the verdict aside, and to order a new trial. Kummer v. Railroad Co., 2 Misc. Rep. 298, 21 N. Y. Supp. 941; Hamilton v. Railroad Co., 53 N. Y. 25, 30; Hynes v. McDermott, 7 Abb. N. C. 98; Engel v. Schoolherr, 12 Daly, 417; Schwinger v. Raymond, 105 N. Y. 648,11 N. E. 952.
The plaintiff was permitted, under objection and exception by defendant’s counsel, to testify to statements made to her by her husband in the absence of the defendant, which, in effect, attributed the husband’s abandonment of his wife to the persuasions and contrivances of the defendant; but the learned trial judge, mindful of the rule which interdicts such statements, as hearsay, limited their admission as part of the res gestae, and as tending to show the existing relation between husband and wife at the time. Willis v. Bernard, 8 Bing. 376; Gilchrist v. Bale, 8 Watts, 355; Palmer v.
“Were you ever present when Mr. Pollock threatened your husband? A. I was not. Q'. Were you ever present when Mr. Alexander Pollock offered to bribe your husband? A. My husband was not present when I saw Alexander Pollock, but once. Q. I ask you if you were ever present when Mr. Alexander Pollock offered a bribe to your husband? A. No, sir.”
Disregarding, as incompetent to establish the defendant’s interference with the plaintiff’s marital felicity, all testimony which was not given upon personal knowledge of the alleged facts narrated, the record, at most, shows that the defendant was displeased with his son’s marriage with the plaintiff; that'he did not approve it; that, notwithstanding, he gave his son employment in his business; that he supplied him with money, and harbored and sheltered him at his home; that he stated it to be his wish that his son might be extricated from a marital alliance which paternal solicitude, perhaps unwisely, prompted him to regard as foreboding future infelicity for his son; that he declined to receive the plaintiff as; a member of his, family, and at his home; that on several occasions, when the plaintiff invaded his home and place of business, he caused her to be ejected; and that he, further, declined to assist her in the restoration of her child, which her husband had caused to be taken from her. But these facts did not justify the recovery. It yet remains to be judicially sanctioned that parental solicitude for a child’s felicity is a reprehensible quality, and that the natural grief and displeasure of the parent because of the child’s marital alliance, which to the former seems apprehensive of the latter’s future discontent, must give way to rejoicing, lest the parent should be exposed to liability in damages for having, by his disapproval, deprived his child’s spouse from the enjoyment of his or her anticipated advantages of the marriage, or that because of a marriage of the child, which the parent conceives to be ill-fated, the latter must, to avoid a similar liability, cast the former out, decline any longer to receive his child in his family, and refuse to succor it by means of employment, shelter, and tender consideration. Neither does the parental roof, by the child’s marriage, become an open asylum or place of refuge for any but those to whom the parent extends the privilege of enjoying it as such. The marriage of the child imposes no obligation upon the parent to receive within the .bosom of his own family, or at his place of business, any person other than one present at the parent’s invitation, or with his con
Observing the difference in the degree of proof which should be required for the purposes of a recovery for the loss of consortium in actions against parents and strangers, we are emphatically of the-opinion that the verdict in the case at bar was not only against the weight of the evidence, but without sufficient evidence. Accordingly, the judgment and order denying the motion for a new' trial made at the trial term should be reversed, and a new trial be-had, with costs to the appellant, to abide the event. The foregoing conclusion renders it unnecessary to discuss the order denying defendant’s motion for á new trial made at special term. We are of the opinion that the order was properly made, and that it should be-
BOOKSTAVEB, J., concurs.
Concurrence Opinion
(concurring). I think that there was sufficient evidence to sustain a verdict in favor of the plaintiff, but am of opinion • that the verdict was excessive in amount, and for that reason a new .trial should be ordered.
