Schorn v. Berry

Martin, . J. This action was to recover damages for an alleged alienation of the affections of the plaintiff’s wife. Among other allegations contained in the answer was the following: “That on divers and different occasions during the years 1886, 1887, 1888,1889, and 1890 the plaintiff had carnal and criminal connection and intercourse with his servant girls, and with other females, and bragged and boasted of the same to the said Clara Schorn, his said wife, and importuned his said wife to have intercourse with other men.” This portion of the answer was stricken out as irrelevant, redundant, and scandalous, and from that portion of the order the defendant appealed. If this matter was proper to be pleaded for any purpose, or if it would affect the question of damages, or go in mitigation of the amount of damages, it was not irrelevant. The true test of relevancy is to inquire whether the averments tend to constitute a cause of action or defense. If they do, they are not irrelevant. 1 Rum. Pr. p. 299 et seq. In an action for criminal conversation, if the husband consents to his wife’s adultery, it is a bar to the action, whether the consent be-general, by giving a general license to his wife to conduct herself as she pleased with men generally, or by assenting to the particular act of adultery charged. Winter v. Henn, 4 Car. & P. 498; Bunnell v. Greathead, 49 Barb. 106; Norris v. Norris, 30 Law J. Prob. Matr. & Adm. 111; Cibber v. Sloper, cited 4 Term R. 655; Sanborn v. Neilson, 4 N. H. 501; Cook v. Wood, 30 Ga. 891. In an action of this character the defendant may show the plaintiff’s carnal connection with other women at any time after his marriage and 573 before trial in mitigation of damages. Smith v. Masten, 15 Wend. 270; Shattuck v. Hammond, 46 Vt. 466; Rea v. Tucker, 51 Ill. 110; Sanborn v. Neilson, supra. The matter contained in the portion of the answer stricken out was alleged both as a defense and in mitigation of damages. It, in effect, alleged that the plaintiff committed adultery with other persons after his marriage and before trial, and that he consented to his wife’s adultery. If the facts alleged could be established, they would constitute a full, or at least a partial, defense to the action. We think the defendant had a right to plead the matters stricken out, and that the court erred in granting the order appealed from. Order reversed, with $10 costs and disbursements. All concur.