Lupton v. Underwood

Boyce, J., charging the jury: Gentlemen of the jury:—This action was brought by Sadie C. Lupton, the plaintiff and wife of Ralph C. Lupton, against — 537 — Gertrude M. Underwood, an unmarried woman, the defendant, to recover damages for an injury to the right of property of her, the plaintiff, in the affections, society, and support of her husband, alleged to have been occasioned by the defendant. It is not denied that the plaintiff is now, and was the wife of Ralph C. Lupton at the time of the bringing of this action, and has been since March 18, A. D. 1911; and that they have lived separate and apart since July the twenty-ninth, the same year. The plaintiff, in her declaration, charges, in substance, that the defendant, on certain days, therein mentioned, in the months of April and May, A. D. 1911, and on divers other days between those dates, respectively, and the commencement of this action, wrongfully, wickedly, and unjustly (1) wrote letters to plaintiff’s husband, and thereby counselled, induced, and prevailed upon her husband to disregard the duty which he owed to her, and thereby his affection for her was alienated and destroyed, and by means thereof she has wholly lost and been deprived of the comfort, fellowship, society, aid, and assistance of her husband in her domestic affairs which she ought to have had and otherwise might and would have had; (2) that the defendant, in like manner, became the companion of the plaintiff’s husband at the home of the defendant in this city to the loss and deprivation of the plaintiff; (3) that the defendant in like manner, enticed, persuaded, and prevailed upon the plaintiff’s husband to separate himself from her, by means of which, and on no other account, she lost and was deprived of her husband’s affection, assistance, and rights of consortium; (4) that the defendant, in like manner, enticed, persuaded, and prevailed upon the plaintiff’s husband to frequently meet her, the defendant, at her said home, to the loss and deprivation of the plaintiff; and (5) that the defendant, in like manner, counselled, induced, and persuaded the plaintiff’s husband to violate his marital obligations and to cease loving the plaintiff, his wife, whereby his affection for her was destroyed to the loss and deprivation of the plaintiff. It is then charged that by means of the several grievances the happiness of the plaintiff has been destroyed, her home has been broken up, and that — 538 — she has been caused great mental pain and suffering, and otherwise greatly injured. The defendant has pleaded not guilty by which she absolutely denies the commission of the several complaints of the plaintiff. The defendant admits writing the several letters to plaintiff’s husband, introduced in evidence by the plaintiff. • It is claimed for the defendant that she had known the plaintiff’s husband, upwards of ten years; that he had boarded with her some seven or eight years prior to and up to the time of his marriage with the plaintiff; and that he had for a long time attended to business matters for the defendant. It is admitted that the plaintiff’s husband visited the home of the defendant after the marriage—at times, it is claimed, at the request of others, and, at other times, for business reasons; and it is insisted that the relations between him and the defendant were proper, at all times. The defendant denies that the said letters were written for the purpose of alienating or destroying the affections of plaintiff’s husband for her, or for the purpose of inducing a separation between them. And it is urged that the plaintiff voluntarily separated herself from her husband; and that, after so doing, he besought her in person and by correspondence to resume marital relations with him. This is, at least, a partial summary of the contentions of the parties. Your recollection of the testimony will enable you to supply any omissions. [11] We are not permitted to make any comment upon the testimony; the jury being made the exclusive judges of the credibility of the1 witnesses and of the weight and value of their testimony. Your duty is to carefully consider all the testimony, and to return a verdict in accordance with the preponderance of the evidence, considered in connection with our charge to you upon the law. When the testimony is conflicting, as in this case, the jury should endeavor to reconcile it. If they cannot do so, they should accept that part of it, which they deem worthy of credit and reject that which they deem unworthy of credit, taking into consideration all the testimony adduced and the circumstances surrounding the witnesses respectively, their means of information — 539 — and opportunity of knowing the facts of which they have testified, their interest or bias, if any, and their manner and apparent truthfulness and fairness in giving their testimony. [12] Under the statutes of this state removing the disability, at common law, of a married woman to sue in respect to her property in her own name alone, a married woman may maintain an action for alienation of her husband’s affections. Marriage gives to the wife the same right of conjugal society as it does to the husband. Each is entitled to the comfort, companionship and affection of the other. The rights of the one and the obligations of the other spring from the marriage relation. Any interference with these rights, whether of the one or the other—particularly by a stranger—is a violation, not only of natural right, but also of a legal right arising out of the marriage relation. Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 553. Whoever, therefore, by the alienation of the affections of a wife’s husband, deprives her of his affections, commits a wrong against her property rights for which such wrongdoer is liable to respond in damages. Eliason v. Draper, 2 Boyce 1, 77 Atl. 572. [13] The basis of the action is the loss of conjugal fellowship, society and aid of the husband. The actionable consequences of the injury of the "wrong, whenever committed, is the loss of consortium, and the alienation of affections is a matter of aggravation. And it is not essential, therefore, to the maintenance of the action that there should be any loss of the husband’s services, or any pecuniary loss whatever. [14] In the consideration of this case, you may assume that the plaintiff’s husband, who lived and co-habited with his "wife from their marriage to the time of their separation, had, during that time, an affection for his wife, unless you find testimony rebutting the presumption. [15] The issue which you are called upon to decide is not whether the plaintiff was justified in leaving her husband but whether the defendant was the cause of the alienation and loss of consortium. It must appear by a preponderance of the evidence that the alienation and loss of consortium were wrongfully, un — 540 — justly and effectively caused by the defendant by the means and as charged in the plaintiff’s declaration in order to warrant a verdict for the plaintiff. It is not necessary to entitle the plaintiff to a recovery that it should appear that the defendant’s conduct was the sole cause thereof. It is sufficient if the defendant’s conduct was the controlling cause. [16] If the defendant’s conduct was effective in causing the injury complained of, any unhappi'ness or even separation between the plaintiff and her husband, not caused by the defendant, would not. justify or excuse the defendant for any unlawful interference between the plaintiff and her husband; for even if it should appear that the husband had little or no affection for his wife, another person has no right to interfere to cut off all chance of its springing up in the future. If the alleged conduct of the defendant was not the controlling cause of the alienation, the plaintiff cannot recover. Any unhappiness between the plaintiff and her husband, while living together, not being induced by the defendant, would not, in itself, constitute a bar to the plaintiff’s action, but would go in mitigation or reduction of damages. In cases of this character, the extent of the actual injury to the plaintiff will of course depend upon the prior relations between the plaintiff and her husband. Evidence in mitigation or reduction of damages will, therefore, be received, which tends to show that the plaintiff has in fact suffered less injury than would otherwise be a probable inference from the act complained of. It is proper therefore, for you to consider, in mitigation of damages, but not in bar of the action, evidence, if any, which shows any unhappy relations between the wife and husband, not caused by the defendant, any want of affection for each other, and the fact that they are living apart, together with the circumstances under which the separation occurred. These and like matters are proper for your consideration, in mitigation of damages, to determine whether on account of such relation, the wife lost much or little by reason of the alleged acts and conduct of the defendant, if you find the defendant committed them and that they induced the injury complained of. Prettyman v. Williamson, 1 Penn. 224, 39 Atl. 731. [17] If you find from the evidence that the defendant wrong — 541 — fully and unjustly, by any, or all of the acts complained of, had a controlling influence in alienating the affections of the plaintiff's husband, your verdict should be for the plaintiff; and the measure of damages would be such as you believe would reasonably compensate the plaintiff for the injury to her feelings; for the loss of her husband's comfort and society; and for the loss of his support. [18] If you find from the evidence that the defendant’s conduct was effective in causing the alienation of the affections of plaintiff’s husband and was wanton and malicious to ward the plaintiff, you may, in such event, in your discretion, award exemplary or punitive damages, in addition to compensatory damages. But in order to warrant the awarding of exemplary damages, you must be clearly satisfied by the evidence that the defendant’s conduct was wanton and malicious. If you find from the evidence that plaintiff’s husband alienated his affections from plaintiff without the influence of the alleged misconduct and interference on the part of the defendant, or that the alienation of his affections was the result of some other cause, over which the defendant did not exercise an effective influence, your verdict should be for the defendant. In conclusion, your verdict should be for that party in whose favor the evidence preponderates. Verdict for plaintiff. [19] At the same term motions for a new trial and in arrest of judgment were made, which were continued to the January Term, when after argument and an expression of opinion by the court that the verdict rendered was excessive, the plaintiff consented to a reduction of the verdict to $2,500. An order was accordingly made by the court, that the verdict should be so reduced, and the motions for a new trial and in arrest of judgment were refused. After such refusal the defendant made application for an enlargement of time for the drawing and signing a bill of exceptions till the first day of the March Term. There was no exception taken or proposed subsequent to the trial term. Neither was there any application made for an enlargement of time for drawing and signing a bill of exceptions till the January Term. The — 542 — plaintiff resists the defendant’s application on two grounds, viz.:— 1. Because the court has no authority to grant the application. 2. Because, even if it has the power, the enlargement of the time asked for would nevertheless be in the sound discretion of the court, and in the exercise of such discretion the application could not be granted. Pennewill, C. J-, after stating the motions and contentions as above, delivered the opinion of the court: There are raised in the present case two questions: the first involving the power of the court and the second involving the discretion of the court. [20] The determination of the first question depends entirely upon the construction the court shall place upon a statute of this state found in the Revised Code at 851, as amended by Chapter 238, Volume 25, Laws of Delaware, which provides that, “the bill of exceptions must be drawn in form and signed during the term in which the exception is proposed, unless the court shall otherwise order.” The concluding words—“unless the court shall otherwise order,” constitute the amendment, and were inserted in the original act to take the place of the following words: ‘ ‘ unless the parties otherwise agree with the assent of the court.” It is admitted by the defendant that under the original act the application now made could not be granted, but it is insisted that under the act as amended it may be, because the amendment, when fairly construed, means that the court may make an order enlarging the time for drawing and signing exceptions, not only during the term at which they were proposed, but at a subsequent term until final judgment is entered in the case. It is claimed by the defendant that it would be unreasonable to hold that the party must incur the expense and trouble of preparing his exceptions and having them signed before he can possibly know whether the judgment will be against him or not, because he cannot, until there is a decision on his motion for a new trial, know whether he will sue out his writ of error or not. The plaintiff replies that the drawing and signing of the exceptions is an entirely different matter from suing out the writ of error; that while the latter must follow the entry of final judg — 543 — ment, the former may precede it; and that the requirement of the statute does not necessarily subject the party to trouble and expense because if the exceptions are not drawn and signed during the term when prepared it entails no hardship to make application at such term for an enlargement of time. It is insisted that such an application is in no wise dependent upon the issuance of the writ of error. The plaintiff contends that the effect of the amendment was, not to enlarge the time when the exception might be drawn and signed, but solely to give the court the power to extend the time without agreement of counsel, because prior to the amendment if counsel did not agree the court could not adjourn without giving reasonable time for preparing the bill of exceptions, and it was to obviate that difficulty and embarrassment that the act was amended. The court are of the opinion that this contention is sound and reasonable. It is admitted by the defendant, as we have stated, that prior to the amendment of the statute such an application as she now makes could not have been granted. We think that the only additional authority conferred upon the court by the amendment is to enable them to extend the time without agreement of counsel. The statute contemplated, after amendment, as before, that the exceptions should Be drawn and signed during the term at which they were proposed unless an enlargement of the time was then asked for and granted. If counsel sees fit to move for a new trial, or for an arrest of judgment at the trial term, and such motion is continued, the requirement that he shall at the same term apply for an extension of the time for signing his bill of exceptions to the next term, entails no expense and imposes no hardship. He is not obliged to procure a copy of the record, draw out his exceptions or have them signed, before final judgment is entered in the case, but only to ask the court, before the adjournment of the term at which the exception was proposed, for an enlargement of the time during which his exceptions may be signed. This is, we think, a fair and reasonable construction of the statute based upon its language, and the manifest intent of the amendment, which was simply and solely to authorize the court to enlarge the time without any agreement of counsel. The application of the defendant is refused.