Botwinick v. Annenberg

Kelby, J.: It was clearly within the province of the jury to believe the plaintiff’s story on conflicting evidence. This would justify a finding that the defendant debauched the plaintiff’s wife as alleged in the complaint. It is claimed that serious error was committed on the trial in allowing the plaintiff and other witnesses to testify to alleged declarations by the wife in the presence of the defendant; and this because of the provisions of section 349 of the Civil Practice Act, which reads in part as follows: “ In an action for criminal conversation, the plaintiff’s wife is not a competent witness for the plaintiff, but she is a competent witness for the defendant, as to any matter in controversy.” This prohibition runs to the disqualification of the witness. Coneededly, the wife was not called as a witness upon the trial. It is claimed that the. provisions of this section were being evaded by allowing witnesses to testify as to the wife’s declarations in the presence of the defendant. These declarations, however, were adduced only for the purpose of getting direct or implied admissions from the defendant, and such testimony was admissible under the authorities. (See Mainard v. Reider, 2 Ind. App. 115.) The plaintiff on the trial offered in evidence an interlocutory and a final decree, divorcing him from his wife. These, on objection by the defendant, were excluded. In spite of such exclusion, however, there is abundant evidence in the case to show that the plaintiff did obtain such a divorce. The defendant himself said that he was never served with a copy of the complaint, that he knew nothing about the divorce until two weeks before the present trial, when his attorney finally got a copy of the record, and the defendant also says that he read the record. In the case of Wottrich v. Freeman (71 N. Y. 601) it was held that in an action for criminal conversation the divorced wife of the plaintiff is a competent [439] witness to prove both the marriage and the offense charged. Under this authority, on proof of the divorce the plaintiff could have called his wife as a witness on his behalf. At the time of the decision of that case in the Court of Appeals there was an existing statutory provision preventing a wife from so testifying, similar to the one now in force. I see no reason to interfere with the finding of the jury as to damages. They found $4,000 compensatory damages and $1,000 exemplary damages. The appellant also claims error in the refusal of the court to charge the following request: “ If the jury find from the evidence that defendant was guilty of illicit intercourse with plaintiff’s wife, that in and of itself does not entitle plaintiff to substantial damages.” In refusing to charge as requested, the court said: “ I do not charge the opposite and say how much damage plaintiff should have, but I refuse to charge in the language that you state it.” There is no error in this declaration of the law by the learned trial justice. As stated in Sedgwick on Damages [9th ed.], § 478, quoting from Yundt v. Hartrunft (41 Ill. 9, 12): “ The degradation which ensues, the distress and mental anguish which necessarily follow, are the real causes of recovery.” (And see cases there cited.) On proof of the defilement of the wife by the defendant the plaintiff was entitled to compensatory damages, and the amount, whether substantial or not, was largely within the discretion of the jury. The judgment should be affirmed, with costs. Present — Rich, Kelly, Jay cox, Manning and Kelby, JJ. Judgment and order unanimously affirmed, with costs.