179 Iowa 1390 | Iowa | 1917
The principal point made for a reversal of the judgment below is that the record is without sufficient evidence to support the verdict of the jury. As above stated, the charge made by the plaintiff as a basis for recovery was .twofold: First, alienation of the wife’s affections; and, second, criminal conversation with the wife. In support of the second count, the plaintiff and another witness called by him testified that, on one occasion, they together saw the defendant and plaintiff’s wife in the act of adultery. While this testimony is characterized by some features of marked improbability, yet, had the jury believed it and found in plaintiff’s favor on that issue, the finding could not have been said to be without support in the evidence. But the jury did not so find; in other words, the plaintiff did not make good his charge of criminal conversation, and, if his recovery of damages is to be sustained at all, it must be on the theory that the evidence shows some wrongful act or conduct on the part of defendant by which he induced or led the plaintiff’s wife to withdraw her affections from her husband.
“In the shape her throat was in, and as Sparks did the work, as she said, I thought it no more than right "that he should tend to it.”
This circumstance tends strongly to show that such objection as he might have had to the defendant’s employment by his wife was not of a very serious character. This thought is further emphasized by the fact tliatj having called the doctor for the treatment of his wife, he went away from home, leaving her to receive the visit alone. While the plaintiff, by his own testimony, and in ferentially by one or two of his witnesses, seeks to minimize or cast doubt upon the wife’s ill health at the time she was consulting the defendant, she. testifies to a chronic ailment dating back to the time of her first confinement, and, with respect to this condition, she is corroborated by the deféndant and disputed by no one. Plaintiff admits his ’ wife’s earlier condition in this respect, and that he had, on one or more occasions, taken her to a physician for treatment. The ex: pert testimony in the case is to the effect that the ailment of which plaintiff’s wife' complained is one requiring frequent and prolonged treatment, and that the treatment administered therefor, according to the defendant’s statement, was in accordance with the approved practice "of the profession. The mere fact that a woman, being "afflicted or believing herself afflicted" with any physical trouble, calls upon a physician at his office or calls him to her home for advice and help, does not in itself afford the slightest ground for reflection upon her "character or the" character "of the physician, nor should a jury be allowed to draw any inference of wrong therefrom. Thousands óf pure and reputable women, wives, mothers and daughters, above all reproach, are making such calls daily everywhére,' and to permit this
As we have already said, the trial court charged the jury: First, that, in order for the plaintiff to recover on the first count of his petition, the jury must find that the defendant committed some of the wrongful acts therein charged and that such conduct on his part was designed and intended to alienate the affections of plaintiff’s wife from her husband, and thereby he did effect or bring about such alienation; and, second, that the testimony by plaintiff of statements alleged to have been made to him by his wife was not to be considered as substantive evidence that defendant had in fact said or done the things so related by her.
Applying the law as we have hereinbefore stated it, and as given by the trial court to the jury, we are satisfied that the court erred in denying the defendant a new trial, and that the judgment below should be remanded for further proceedings in harmony with this opinion. — Reversed.