Reading v. Gazzam

Opinion by Mb Justice Bbown, If there was evidence in this case to sustain the appellee’s complaint that the appellant had taken from her the society and affection of her husband, and, by causing him to abandon — 106 — her, had deprived her of the support due her as his wife, the judgment before us cannot be disturbed. This seems to be conceded by the learned counsel representing the appellant, who take no exception to what the court below said to the jury as to the law in a proceeding like this, and assign as the single error appearing on the record the refusal to affirm the only point submitted, that “ Under all the evidence in this case the verdict should be for the defendant.” The case was most carefully tried. Not an exception by the defendant appears to the admission or rejection of evidence, and neither plaintiff nor defendant complained of the general charge, in which the learned trial judge correctly spoke these words to the jury: “ An action of this kind can be maintained, provided the facts as alleged by the plaintiff are clearly proven. The wife is entitled, as a matter of right, not only to the support and maintenance of her husband, bub also to his love and affection. It follows that if any woman by the exercise of any arts or wiles, alienates the husband’s affections from his wife, entices him away from her presence, so that she has not the consolation and advantage of his society and does not receive adequate support from him, an action may be maintained for such an injury. To entice away or corrupt the mind of one’s consort is a civil wrong for which the offender is liable to the injured wife. The gist of the action is not the loss of assistance, but the loss of consortium of the husband, under which terms are usually included the person’s affection, society and aid. The plaintiff’s allegation is a very serious one, and it is incumbent upon her to prove to you, before any recovery can be had, that the defendant, Mrs. Gazzam, enticed her husband away, that she did something by which his former affections were alienated, by which he afterwards failed to perform those duties which the husband always owes to his wife, for support and the like. I charge you that there can be no recovery by the plaintiff unless you find from the testimony that the defendant intentionally and wickedly alienated the affections of Charlton Reading from his wife, intentionally enticed him away from her presence, and thus induced him to withhold the love and affection which he by law owed to her.” Our duty has, therefore, been simply to review with care the evidence produced by the plaintiff, to determine whether the court below should — 107 — have said to her that, with all her proofs, she could not recover. We have so reviewed it, and are compelled to the conclusion that, under the law conceded to have been correctly spoken by the learned trial judge in his instructions to the jury, it was for them to say whether, on the case as presented by the plaintiff, she ought to recover for the wrong of which she complained. It is not for us to say that, if we had been the jurors, our finding might have been for the plaintiff or that our verdict would have been for the defendant; we are only to determine whether the plaintiff brought to the support of her serious accusation such proofs as would justify a jury, properly instructed by the court, in returning a verdict in her favor. Having determined that there was such evidence for their consideration, we might well affirm the judgment without saying more, and will refer but briefly to some of plaintiff’s proofs in illustration of the necessity which was upon the court below to submit this controversy to the jury for their just disposition of it. The following extracts from some of the defendant’s letters to the husband of plaintiff, written during the period of her alleged enticement of him, can hardly be regarded as legitimate portions of strictly business communications, but, even “from a fifth cousin once removed,” rather impress the impartial mind as wooing words from one woman to the husband of another; and the court would have erred if it had said to the jury that they were not, in connection with all the other evidence in the case, to be fairly regarded as proofs of the allegation that the defendant intended to entice the husband from his wife : “ My dear Cousin: I was beginning to be worried about you before your letter came, telling me that you are comfortably settled, of which I am very glad,—though your closing word is one of the saddest—my own heart can respond to the truth of that. Yet were Mr. Gazzam here, as in years past, I would be a more lonely woman than I am to-night—freedom is blest—-sometimes —and yet! “You have my sympathy, but it will not relieve your loneliness however earnestly I wish it might—yet, from my own experience trouble is lighter with a friend at one’s side. . . . Write to me dear cousin whatever you care to say—I shall keep the confidence of your letters. . . . Aug. 5,1892. How — 108 — nrnch I would like to have you here just now—‘ to comfort me,’ but the conventionalities, which you justly recognized when here, I foresee must deprive me largely of even my cousin. Yet they cannot altogether—in fact I find myself looking to see you soon again. And now,, good-night—‘ a thousand times good-night,’ to coax away the solitude. “ Affectionately your cousin, Anne.” “ My dear Cousin: I am writing you before breakfast because having reed, your letter I am so tired with the mail that failed to deliver my letter to you on Sunday, as I intended it should, and sent it on Saturday for that purpose. Sunday is such a long lonely day and on your first Sunday ‘alone ’ my thought was with you. Perhaps in the Beyond, without the ‘ touch of a button’ we can present ourselves where we will. Instinctively my spirit sought yours at your window on Sunday, but I forgot to raise my eyes to the mountain whose lights I used to watch from my window on Sunday afternoon—You are brave and you will yet have much of the joys of living that belong to this present sphere. ... “ Affectionately your cousin, Anne.” “. . . . My dear Cousin, I fear you will feel that I am not worthy to put one brick in a church. ... I am leaving to the last page my impatience for your coming. ‘Some things are ill to wait,’ says Jean Ingelow, and I am spoiled and lonely for a talk with you. . . . Tell me at what hour you will be due in Philadelphia and whether I may expect you to supper. Wednesday evening—And now until Wednesday, good-by—and when you look at the silver bow over the mountain do not believe that you are ‘alone.’ “ Your affectionate cousin, Anne.” “ My dear Cousin: Your delightful letters have been received but I am disappointed that I will not see you at Xmas. “ I am glad—so glad—that you can write more cheerfully now—I regret so much to hear what you say about no welcome in one place on Xmas. At least you must know there is one other place where you would find a cordial welcome. I cannot understand,—as you left here early on ‘ the last afternoon ’ to go to the fair—and I thought all was serene and happy—Bessie — 109 — was over one afternoon sometime ago to play with Anti'onette and she expects to go over this afternoon to play with Bessie if she finds her at home. “I have just had a beautiful letter from a friend in New York, who signs himself, for the first time, ‘Hamlin.’—The name is pretty—He writes me to visit him at his office—What do you think. of women calling at men’s offices—do you approve? I inclose Mr. Pigott’s last—I have replied that Mrs. Jamieson was my father’s nurse, and for address, &c., have referred him to Dr. Bell. “ Believe me your affectionate cousin, Anne.” “My dear Cousin: Your delightful letter received a day or two ago was next best to seeing yourself. I have for some time been ill in bed, and I had been lying here thinking how a letter from you would brighten this dark corner of the room and at last ‘iny ship came in’ and I have your message of remembrance by me. What a fraud you are anyway, but it is unnecessary to believe in all your little wiles to make them pretty and interesting. You and I don’t live altogether by faith. You know we are aware we can live, at least in a way, whether we believe or not. “ When the boat passed just beyond the line of recognition, I hurried to the other end of the deck, and waved and waved the roses, hoping to catch one more returning signal from you, but I could no longer distinguish among the throng. . . . About 5 o’clock in the afternoon I often picture you as walking up in the midst of a sunny autumn noon to a delicious mittagessen of chicken, with a good American flavor, and all the blessings of a Pennsylvania fall, peaches,- melons, egg plant, lima beans, corn fritters, sweet potatoes, &c., &c. This is a pleasant picture to me. ... I am anxious to hear about yourself. How I wish I could know you have passed the worst and are recovering. It hurts me to think what you must suffer. . . . You will remember your promise I am sure, of letting your nurse send me a line if you are unable at the first to write me how you are, and do not attempt such a thing yourself until you are fully able. ... I find that those little mistakes of the Doctor’s in New York were not so much mistakes, but birth marks so to speak. He must have been born a few minutes — 110 — late by the clock. . . . My heart was divorced long before the law ‘set me free from that dead body,’ to use Mr. G. Jenkins’ language. ... I shall watch the mails whenever a letter is due from you, and I shall often live over in spirit some of the pleasant hours you gave me last summer. Believe me, loving and faithfully, “ Your cousin, Anne.” In addition to the foregoing, one witness testified that, having come unexpectedly upon the defendant and Reading in a hotel at Williamsport, she found them “ sitting on a very small lounge, and he had his arm around her, and she was leaning on him; ” and others relate how Mrs. Gazzam and Reading spent months at a resort at Cornwall-on-the-Hudson; how he was constantly in her bedroom; that they were driving together, and strolled alone at night through the dark lawn until late hours, at times not returning to the hotel until twelve or one o’clock. The intention of the defendant may not have been to woo Reading from his. wife and win him for herself; but the court could not have so declared, in the light of the evidence produced by the plaintiff, to some portions of which we have just called attention. It was a question of fact to be determined by a jury, under all the evidence before them—plaintiff’s proofs, as well as the defendant’s with her denials and explanations. There was evidence that after Reading began to spend his time with Mrs. Gazzam, his love and affection for his wife waned, and he became indifferent to her support. Finally, there was absolute abandonment, the conclusive evidence of the wife’s loss of her husband’s love and affection; and that this abandonment was not complete until after the institution of this suit cannot affect the plaintiff’s right to recover for the alleged wrongs committed before, but can rather be justly regarded as the consummation of what the defendant intended to do and partially succeeded in accomplishing before she was sued. If the jury found, as they did, that it was the intention of the defendant to alienate the affections of Charlton Reading from his wife, and to entice him away from her, they were justified in finding that she had succeeded; and we cannot interfere with their finding. It may be that the defendant is guiltless of what she has been convicted. No single letter written by her — 111 — and no one act testified to as having been done by her would be sufficient to support the grave accusation against her; but all that she did and all that she wrote, taken together, present such a case that a jury alone could pass upon the question of her guilt. The court could do nothing for her but give her what she has received, a fair and proper trial; and she cannot justly complain that what she may now look back upon as her folly was fairly regarded by a jury as her serious conduct for the accomplishment of a great wrong, the penalty for which is found in their verdict. Judgment affirmed. Mitchell, Fell and Potteb, JJ., dissent.