Hanor v. Housel

Sewell, J.: The action was brought to recover damages against the defendant for alienating the affections of the plaintiff’s wife. The appellant claims that the judgment and order should be reversed for errors in rejecting evidence, for errors in instructing the jury, for newly-discovered evidence and the improper conduct of the jury. . The complaint alleges that the defendant “ Prior to August 15th, 1907, became acquainted with the plaintiff’s said Wife, and that thereupon he wrongfully and unlawfully began to pay improper attention to the plaintiff’s said.wife and.began,a course of conduct towards her with the wrongful and unlawful intention and purpose of alienating her affections from the plaintiff,' her husband, and winning them himself, and that from that time on, said defendant continued to bestow upon her various, attentions in order to accomplish his said improper purposes. That he would frequently meet the plaintiff’s said wife at the plaintiff’s said store and other places, and would engage in conversation with her and that by undue and improper attentions and by méans. of flattery and other arts and wiles he continued from the time he formed the said- improper and wrongful purpose down to the time of the commencement of this action to do the said improper and wrongful acts and things. That among other things, he began to importune and urge the plaintiff’s • said wife to have and maintain improper relations with the defendant and to go with him to various places for that purpose. * * * That the said defendant did wrongfully and unlawfully accomplish [803] his said improper purpose and did deprive the plaintiff of the said comfort, society, aid and assistance of .his said wife, and did alienate and destroy her affections for him,” and then alleges sexual intercourse with the wife, and “That by reason of the premises and of the said wrongful and unlawful acts of the said defendant, the said affections which prior to the said wrongful and unlawful acts of the defendant, his said wife entertained for him, have become wholly alienated and destroyed, and he and his wife have by reason thereof become separated, and his home has become broken up, and he has wholly lost the said comfort, society, aid and assistance of his said wife.” I agree with the learned trial justice that the complaint states a cause of action for the alienation of the affections of the plaintiff’s wife and no other. The sexual intercourse between the wife and the defendant is not alleged as an injury, but as one of the “other things” or means by which the defendant accomplished' “ the wrongful and unlawful intention and purpose of alienating her affections from the plaintiff.” The gist of this action is the loss of comfort, society, aid and affection of the wife to which the husband was entitled by virtue of the marriage contract. The illicit intercourse, undue and improper attention, flattery and other acts and wiles are merely the alleged instruments by which the loss was occasioned. In order to maintain the action it was only necessary for the plaintiff to prove his marriage, and that the defendant alienated the affections of his wife by any one or more of these acts. This view is strengthened by the decision of Weston v. Weston (86 App. Div. 159), where a similar complaint was held to state a cause of action -for alienation of the affections of the plaintiff’s wife, and the criminal conversation to be alleged in aggravation of the damages inflicted. It is.apparent, therefore, that the court did not err in stating to the jury that the action is for the alienation of affections. It is equally clear that the court did not err in excluding the affidavit of the wife, or that part of the conversation between her and the plaintiff which tended to show that the defendant had had criminal intercourse with her. They were not only confidential, but they [804] were apparently induced by the marital relation and clearly within the prohibition of section 831 of the Code of Civil Procedure, which provides that “ A husband or wife shall not be compelled, or without the consent of the other if living, allowed to disclose a confidential communication made by one to the other during 'marriage.” There.is no force in the claim of the appellant’s attorney that the evidence was á part of' the res gestae. The mere fact' that the wife had or maintained improper relations with the defendant is not sufficient to support the action. In order to maintain the action there must have been some active interference upon the part of the defendant. The evidence must show that he. wrongfully induced thé wife to abandon the plaintiff. There is an obvious distinction between this case and one where ■the declarations of the wife were Voluntary and spontaneous and sprang out of the principal fact and tended to explain it. (Buchanan v. Foster, 23 App. Div. 542; Whitman v. Egbert, 27 id. 374.) I am also of the opinion that the motion made by the plaintiff for a new trial on the ground of newly-discovered evidence, and for ■the misconduct of certain members of the jury was properly denied. The rule is imperative that a motion for a new trial on the gronnd of newly-discovered evidence can only be made on a case which presents the . evidence given on the first trial. (Code Civ. Proc. § 997.) I think that the learned trial court was justified in presuming that the misconduct, if there was any, did not produce injury to the plaintiff. However that may be, there was no competent proof before the court on which he could have granted the application. It did not appear that the jurors read the article published in the newspapers, except by their own testimony, and it is well settled that the affidavit or admission of a juror cannot be received to show irregularity or misconduct on his own part or that of his fellows. (Haight V. City of Elmira, 42 App. Div. 391; People v. Gallagher, 75 id. 39.) It follows that the judgment and order should be affirmed, with costs. All concurred, except Kellogg, J., dissenting in opinion; Smith, P. J., concurred in result in memorandum.