Rudd v. Rounds

Tlie opinion, of tlie court was delivered by ROSS, Ch. J. This is an action brought to recover damages for an alienation of the affections of the plaintiff’s wife and thereby causing her to leave him. The wife’s state of mind and regard for the plaintiff at the time she became acquainted with the defendant, and during the time of that acquaintance, until she left the plaintiff, and if there was a change during that period, whether caused by the conduct of the plaintiff, or the wrongful conduct of the defendant, were proper subjects of inquiry and investigation. The condition of her mind in regard to her husband, and what caused it to change from time to time, could be ascertained by her acts and conduct towards the plaintiff and defendant respectively, and by their acts and conduct towards her, and by her and their expression of their respective mental state towards and for each other, and of the causes therefor. The nature of the suit and what was involved in its solution, opened a broad field of inquiry and investigation. The wrongful alienation of her affection by the defendant, resulting in her leaving, and refusing to live with the plaintiff, as his wife, constitutes the gist of the action. Her leaving and refusal bore upon whether her affections had been alienated from some cause, and if caused by the wrongful conduct of the defendant, upon the amount of damages recoverable. What she said concurrent with, and while she was leaving the plaintiff’s house, and on her way to the house where the defendant was stopping, and when she had reached there, and her refusal at the request of the defendant, to return to her husband, characterizing and giving the reason for her leaving, and refusal to return, were a part of the res gestae of the leaving and refusal to return, and admissible in evidence. State v. Howard, 32 Vt. 380; Hadley v. Carter, 8 N. [440] H. 40. Tlie latter case was for enticing away a servant, and quite analogous, in principle. Her leaving was not fully accomplished until she had reached the house where the defendant was stopping, and refused, on his advice, to return to the plaintiff. What she gave as her reason for leaving, to the defendant, to her father and mother, gave character to the act she was then performing, and should have been received in evidence. These declarations were concurrent with and a part of the act, of which the defendant complained. They were made before this suit was, or could have been, in contemplation. As announced by Uedfleld, J. in Danforth v. Streeter, 28 Vt. 490: “The jury were to judge * * * whether the declarations were made bona fide, or were a mere ruse to get up evidence upon his own behalf, or for some other intended purpose.” We observe nothing in that part of the mother’s deposition excluded which we think was inadmissible. The defendant had the right to show what the wife, when exhibiting wounds and bruises claimed to have been inflicted by the plaintiff, said of their effect upon her feelings towards the plaintiff. The occasions were either shortly before, or during her acquaintance with the defendant. Gilchrist v. Bale, 8 Watts 355 (34 Am. Dec. 469). That the plaintiff made no reply to the mother’s letter accusing him of j>ersonal abuse of his wife and of his changed manner thereafter towards the mother, were circumstances bearing upon the truth of the accusation. As mother, she had the right to inquire in regard to the plaintiff’s treatment of her daughter. Naturally he would have replied and denied the accusation, if false. The fact that she complained of, and caused the plaintiff to be prosecuted just before she left was admissible to show that the abuse had so far weaned her affection for him that she was willing to subject him to prosecution. There was no error in excluding the inquiry put to the plaintiff on cross-examination. The court are not judges of materia medica. As put, the question called for immaterial matter. [441] Whether the plaintiff invited his wife to go to the village with him, and she declined and afterwards went with the defendant, did not involve a matter of marital confidence. Such invitations between husband and wife, usually, are given and declined publicly. They are not usually secret, but ordinary, open communications. They neither require, nor are inspired by marital confidence. We cannot presume they were on this occasion. The fact that the wife was more attentive to the defendant, than to the plaintiff, also that the plaintiff protested to her against the defendant being with her so much, were properly admitted. We have not been furnished with a copy of the wife’s letter addressed, but not sent, to the defendant, which was excluded by the court. We do not consider whether any portion of it was admissible. The question of the admissibility of the letter or any portion of it is not properly before us. The persistent efforts of the plaintiff’s counsel to place the contents of the letter before the jury after it had been excluded were very Reprehensible. When allowed, as it was, against the objection and exception of the defendant, on the case as made up, it was reversible error, that could only be cured by showing that the letter was legally admissible. But conceding that the court erroneously ■excluded the letter, such fact furnishes no excuse for the conduct of the plaintiff’s counsel. His conduct may have been occasioned by indiscreet zeal, and the spur of the occasion, and have been regretted as soon as it was over. Yet counsel should never permit their zeal, or the excitement of the occasion to carry them beyond the proprieties of practice. We do not think that the value of the services of his wife, was the true measure of the plaintiff’s damages. He was legally entitled to her service and marital consort. But these rights were also burdened with the obligation to clothe, support, cherish and care for her, in sickness, as well as in health. The rulegiven is too broad and unlimited. Judgment remersed a/nd cause remanded.