139 P. 334 | Or. | 1914
delivered the opinion of the court.
On the 8th day of May, 1912, John "W. Saxton, plaintiff herein, commenced an action against the defendant, W. 0. Barber, to recover damages alleged to have been sustained by reason of the fact that defendant had secretly, and, by all the arts and means within his power, contrived to injure plaintiff by seducing his wife and depriving him of her comfort, society, and assistance, and thereby win her love and affection. Judgment for $30,000 was sought by plaintiff, though judgment for $1,000 was entered responsive to the verdict of the jury. Defendant in his answer denies the averments in plaintiff’s declaration, save that defendant admits he visited the home of plaintiff as a friend and neighbor, and upon the frequent invitations of plaintiff, free from any wrongful or wicked motive. Continuously for seven years next preceding the commencement of this action, excepting a few months spent on an irrigated ranch in Central Oregon, plaintiff, with his wife, Ida May Saxton, and their family of four children, 'have resided upon a farm in Crook County, near by the town of Opal City. During the whole of this time the defendant, an unmarried man, has resided upon an adjoining farm.
“Don’t stand around the corners
And try your best to flirt,
Don’t smile and give the naughty eye
To everyone who Wears a skirt.
“Now if you do not change your ways
It will cease to be a joke,
For some sweet girlie’s brother
Will give you an awful soak.”
“I charge you that in this case it is not necessary that illicit intercourse between the defendant and the plaintiff’s wife be directly proven. If that were so, it could seldom be proved. Positive evidence of the commission of adultery is rarely possible, and resort may be had to circumstantial evidence from which the overt act charged may be inferred, if you find from the evidence in the case that the overt act is inferable from the circumstances proven in the case.”
While mere opportunity to commit adultery is not sufficient to establish this offense, still the law does not require that plaintiff prove the connubial relation by direct testimony. If it were necessary to prove the charge of sexual intercourse by direct testimony, seldom indeed would the charge be ever substantiated, for participants in that indulgence carefully keep the light of their wrong hid under a bushel and it is only by the invocation of the rule permitting the admission to the jury of circumstantial evidence that sexual gratifications of that character can be proved. As well
< í There must be evidence of such facts and circumstances, times, and places, and associations together as would naturally lead a man of ordinary care and prudence to the conclusion that such parties were having illicit sexual intercourse.”
The sentiment of this court was admirably expressed by Mr. Chief Justice Moore, in State v. Eggleston, 45 Or. 346 (77 Pac. 738), and approved in State v. La More, 53 Or. 261 (99 Pac. 417), in this language:
“Positive evidence of the commission of adultery is rarely possible, and, as crimes against morality and decency must not go unpunished, a resort must be had to circumstantial evidence, from which the overt act charged may be inferred. ’ ’
The advice to the jury contained in the instruction, about which defendant grieves, was a correct exposition of the law, and left to the judgment of the jury whether illicit intercourse between defendant and plaintiff’s wife was to be gathered from the circumstances surrounding the plot and play of the participants.
“It is not necessary that an adulterous disposition on the part of the defendant be proven by direct or positive testimony to that particular point; but this may be inferred from the conduct of the parties and from the associations and relations which existed between the parties, if you find from the evidence that such association and relations establish such adulterous disposition, or, in other words, proof of an adulterous mind on the part of either or both of the parties may be established by circumstantial evidence. ’ ’
“In a case of tbis kind it is not necessary to show that tbe defendant’s conduct was tbe sole cause of tbe alienation of tbe wife’s affections, if you find from the evidence her affections were alienated, but it is sufficient if you find from tbe evidence in the case that the wrongful acts of tbe defendant were a contributing cause of the alienation of tbe affections of plaintiff’s wife, if you find from tbe evidence that such affections were alienated.”
Tbe fitness of tbis charge cannot be determined by its isolation from other parts of a kindred nature. On tbis point tbe court further said:
“If you should find from all tbe evidence in tbe case that tbe defendant wrongfully alienated tbe affections of tbe plaintiff’s wife from the plaintiff, and also bad illicit sexual intercourse with her, then tbe fact that be bad illicit intercourse with tbe plaintiff’s wife may be considered by you in determining tbe amount of damages which tbe plaintiff would be entitled to recover of tbe defendant. Tbis is a civil case, and tbe
Considering the charge in its entirety as covering one phase of the case, we think the jury could not have been misled as to the law, and that the court admonished the jury that plaintiff, in order to prevail, must show by the preponderance of the evidence that defendant alienated the affections of plaintiff’s wife. It cannot be doubted the general rule is that there is no ground for an action where a spouse voluntarily gives his or her affections to another; the latter doing nothing wrongful to win such affections. To support an action for alienating a husband’s or wife’s affections, it must be established that the defendant is the enticer. Mere proof of abandonment, and that the husband or wife maintains improper relations with the defendant, is not sufficient: Scott v. O’Brien, 129 Ky. 1 (110 S. W. 260, 130 Am. St. Rep. 419, 16 L. R. A. (N. S.) 742,); 15 Am. & Eng. Ency. of Law (2 ed.), 895; 21 Cyc. 621. We think there was no error in giving this instruction. The jury was plainly told that the wrongful conduct of defendant must have been the contributing cause of the alienation, though not necessarily the sole cause, but that plaintiff could recover only upon producing a preponderance of the evidence showing that defendant had wrongfully alienated the affections of plaintiff’s wife. The instructions taken as a whole have the effect of telling the jury that defendant’s conduct must have been the controlling cause of the alienation.
It is urged the court erred in failing to give certain instructions requested by counsel for defendant, but after a thorough consideration of the instructions requested, and those given by the court, we conclude that
“Q. What was the habit of Mrs. Saxton, if you know, in reference to talking about the defendant, Barber?
“A. She always showed great favoritism about him.
“Q. This may be gotten at by your stating whether ■ she was in the habit of talking about him or not.
“A. Yes, sir.
<£Q. What time do you refer to, when was she in the habit of talking about him, as to whether it was during all the time you were living out there, or only a portion of the time?
££A. All the time during my acquaintance with her.
££Q. In what way would she talk about him?
££A. Telling me about him, talking about his illness when he had typhoid fever; that he was a friend of the family, and they thought a great deal of him," and she showed decidedly— (Stopped by court on objection of defendant).
££Q. You may state whether or not she appeared to want to talk about him.
££A. Yes, sir.
££Q. Who would start these conversations about him?
££A. Mrs. Saxton.
££Q. In what way would she talk about him, as to whether or not she was saying pleasant things about him, or ugly ones?
££A. Always pleasant.
“A. I hardly know how to answer that. She informed me a good many times about his business affairs; really things he was doing and concerned about. Mrs. Saxton informed me about it in a general way, and she showed favoritism—
“Q. See if you can describe that in some other way. Yon may state whether or not she made statements in reference to his business affairs or not.
“A. Yes.
“Q. Have you ever been about the house, her house, at times when she would be commenting at what would be going on at his place?
“A. Yes, sir.
“Q. Tell about that.
“A. She generally knew about his customs on mornings, from his curtain, and the view that she had of his house from her back window, and there was one thing she talked about often, mentioning that she knew whether he was up or not, what he was going to do during the day, and so on.
“Q. Did you have any conversation with her in reference to the separation of the plaintiff and his wife (interrupted) ?
“Q. What did she say at that time in reference to her feelings toward the defendant?
, “A. She said she felt very kindly toward him, and said he had always been a friend of the family and treated her so well she could not help thinking a good deal of him.
“Q. Did you make any remark to her?
“A. I said a person could not help liking anybody who had been good to them, and she answered by saying, ‘You bet your life they can’t.’
“Q. At what time was this?
“A. That was during the day that they had this final trouble in the morning, and this was perhaps—
“Q. About when was this conversation?
“A. During the forenoon, perhaps an hour later.”
The same objection was made, and the same ruling and rule is applicable, to the testimony of the witness May Blair, who described the actions of Mrs. Saxton toward her husband by saying: “She was irritable toward him, and spoke very cross to him.”
We find no errors which would justify a reversal, and for that reason affirm the judgment of the lower court. Aeeirmed.