Powell v. . BenthallPowell v. . Benthall
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- Connor
The plaintiff testified that he married Eunice Parker (146) during the year 1891 and lived with her at Aulander about six years. He failed in business in 1892. That he kept boarders and hired horses. In 1897 he left Aulander and his wife went to live with her sister, the feme defendant, near the town of Aulander. She asked permission to go. Said that her sister wanted her to help trim hats, and he thought that it was better for her to do so. That he was traveling and away from home a great deal. That defendants and he were friendly and up to that time he had always supported his wife. After she went there all went on smoothly and he visited her. He went to Greensboro to live at the suggestion of the defendants, Benthall
Witness said that he went at once to defendant and saw his wife in the presence of Mrs. Benthall, and asked his wife why she wrote the letter. She replied that it was to protect herself. He said that he had come to move her away with the furniture. She said that she would not go; he said that he would get a divorce — she objected. He said this to see what effect it would have on her. He testified to his affection for his wife. His furniture, horse and buggy were a? Benthall‘s. While he was insisting on his wife‘s going with him Benthall came up and said if they could not agree they had better divide up. She
Mrs. Powell testified for defendants that she went to defendants’ October, 1895, and lived there twenty-two months before she separated from her husband. She went there because her husband thought it best to do so. She denied several of the statements of her husband. No one counseled her to leave her husband or prevented her from living with him. Neither of the defendants did so. When they divided property he asked her for the engagement ring — said it would help him in getting another girl. She described the treatment of her when she dressed in the office. He pulled her down — she had on morning wrapper, and during the scuffle the buttons were torn off. Told him that she would rather die than go with him. He said she had to go; would take her dead or alive. Mr. Newsome said: “Don‘t let the woman dress in the road.” He agreed to let her go in the office. He went with her in the office, (149) holding her arm. Went with him because she could not help
Defendant W. T. Benthall testified that he married Mrs. Powell‘s sister. Powell came to see him and made arrangements to move his wife to witness‘s house and to keep his furniture. Told him that he would charge nothing as she was his wife‘s sister, that she could help his wife about the house. Did not ask plaintiff to come or let his wife come. He asked witness to take her. When he went to Greensboro Powell borrowed $10 from witness. When he came back said he had twenty-six cents. Witness gave Mrs. Powell no advice about leaving her husband; knew nothing of any trouble between them. On the night he stayed at witness‘s house he said: “What is the matter with Eunice?” Witness asked him what he meant — said she did not talk to suit him. Powell never seemed out of humor with witness until Mary Parker carried a message; he then talked as if some one was trying to take his wife away. Witness told him he had nothing to do with it; that he would take his wife to the station any time she wanted to go. Powell wrote a note about harboring his wife; read it to Mrs. Powell. When he read it he said: “Eunice, you will have to move.” She said: “If you and my sister will not let me stay I will have to go somewhere. I will live in a hollow tree before I will live with Mr. Powell again.” Witness testified that she was his wife‘s sister and he could not drive her from his house. Mrs. Benthall said nothing. Heard about Powell‘s publishing notices forbidding any one to let his wife stay in their house. Told his wife. Mrs. Benthall testified that when plaintiff was pulling his wife in the road she heard her (150) screaming and went to her; she was down in the road in the mud, her clothes torn almost off, her body was exposed. Went to her but was repulsed by plaintiff. Gave no advice or suggestion at any time to sister about leaving her husband, or prevented her from returning to him. Had let her live in the house because she was her sister and wanted to stay. There was other corroborative testimony. At the close of the evidence defendants renewed their motion for nonsuit, which was refused. Defendants excepted. The defendants asked the court to charge the jury: “The defendants had the right to permit their sister to live in their house, and to give her such countenance, comfort and support as her condition seemed to require, although she had separated from her husband without just cause, and although the plaintiff, after said separation,
The court in charging the jury upon the second issue explained the law regarding the right of the husband to the society, etc., of the wife, and of her duty to live with him and submit to his control, etc. Also, as to the duty of the husband to support his wife and by what treatment he would forfeit his right to her society, etc., after which his Honor said: “Now, gentlemen, applying these principles to the case at bar, the court charge you that if you find from the evidence that the defendants or either of them allowed and permitted the plaintiff‘s wife to life at the home of Mr. Benthall, after the plaintiff had objected to her doing so, such objection having been made known to the defendants, or either of (151) them, then should answer the second issue `Yes,’ unless you find that the wife of the plaintiff left him on account of cruel treatment to her, or from one of the causes to which I have before referred as grounds upon which the wife may leave and separate from her husband.”
The court further charged the jury that the burden was on the defendants to show justification on the part of the wife for leaving the plaintiff against his will. That the fact that defendants were the brother-in-law and sister of plaintiff‘s wife could not justify them or either of them in allowing her to remain at the house of Mr. Benthall against the will and after objection by the husband, but they must show that the wife was justified in leaving. To these several instructions the defendants duly excepted and from a judgment for the plaintiff appealed. His Honor‘s instructions are based upon certain legal propositions which are challenged by the defendants’ exceptions. They are: that, if the wife separated herself from her husband without his consent, her sister and brother-in-law become liable to an action for damages on the part of the husband, if, after being forbidden to do so, they permit or allow
The testimony of the plaintiff is that he permitted his wife to live with defendants without paying board, compensating them by helping her sister with her work. It seems that the husband, having been unfortunate in his business, found it desirable to leave his home to seek employment. The wife begins a correspondence with him indicating affection and attachment. After some time she writes him a letter which he says troubled him and brought him home. The contents of this letter are not given, but it is said by him related to his indebtedness. When he gets home his wife meets him and something is said about going to ride. The testimony in regard to the meeting and the incidents of the first night is conflicting. It appears, however, he slept at defendants’ house, but not in the same room with his wife. On the next day his wife writes him a letter saying that she has decided not to return to him unless he changes his mode of life, etc. He at once went to see her, and in the presence of Mrs. Benthall talked the matter over with her — she repeating her purpose to separate from him. Something was said about dividing their personal property. Plaintiff after this took out process for the possession of the property and went to defendants’ house with the officer. His wife was in her morning wrapper, and the scene occurred as detailed in the evidence. He took her to his father‘s for two days and nights during which time they lived (153) as man and wife. After attending a trial before the Justice, the wife, in a buggy with her brother, returned to defendants’ house and remained until December, when plaintiff
In Turner v. Estes, 3 Mass. 317, the Court said: “The defendant is charged with enticing the plaintiff‘s wife. No evidence was given at the trial of any enticing. As to the charge of harboring, the sum of the evidence is that the defendant permitted his wife‘s mother to remain in his house without using force to expel her. He was not obliged to use force.” These authorities fully sustain the defendant‘s exception to the charge. We think that his Honor was also in error in placing upon the defendants the burden of showing justification. Barnes v. Allen, 40 N.Y. 390. The learned Justice says: “The gist of the action, as all the authorities agree, is the loss without justifiable cause of the comfort, society and services of the wife. In maintaining the action two questions principally
New trial.