Opinion
May Term, 1898.
Abner T. Hopkins, for the appellants.
P.F. King, for the respondent.
The appellants urge five grounds for reversal of the judgment and order: (1) That the court erred in overruling the defendants' motion for a nonsuit made at the close of the plaintiff's case and renewed at the close of the evidence. (2) That the verdict is against the weight of evidence. (3) That the verdict is for excessive damages. (4) For errors in admitting and rejecting evidence. (5) For errors in the instructions of the court to the jury.
The court did not err in refusing to nonsuit the plaintiff, as the evidence was quite sufficient to present a question of fact for the jury as to whether the defendants induced plaintiff's husband to separate from her. Both defendants were sworn before the referee in the action for a separation, and by the minutes of the evidence produced and verified on this trial it appears that Mrs. Coulter testified that on the next day after the marriage she went to Lockport and consulted counsel to see if the marriage could not be annulled. She also testified that she loaned her brother $100 with which to leave the State, and both defendants testified that on Sunday, when the plaintiff came to the house looking for her husband, they ordered her off the premises. Mrs. Coulter testified that when the plaintiff started to leave the premises: "Then we had some fun. Some one rung a bell as she went up the road; some one beat pans or pails and blew horns and made a noise generally to humiliate her; the Sabins were all there; they brought their own bells. I took my full share in this business. It was after that I gave my brother the hundred dollars." The defendants by their evidence given on this trial and on the trial before the referee established a cause of action as against themselves.
For the reasons before stated the verdict is not against the weight of evidence, but is fully supported by it. The verdict for $1,750 is not excessive, as the evidence clearly establishes that the defendants not only upbraided the plaintiff's husband in the most violent terms for having married, but induced and aided him to leave the State; and that when the plaintiff came to inquire after her husband, they were guilty of the most uncivilized conduct for the purpose of humiliating and holding her up to derision, and afterwards took possession of all his property for their own benefit, and thus far have excluded the plaintiff from any benefit therein. In actions of this kind the motives which induce defendants to do acts constituting the cause of action may be considered on the question of damages. ( Barnes v. Allen, 1 Abb. Ct. App. Dec. 111; S.C., 1 Keyes, 390; 1 Sedg. Dam. [8th ed.] § 363 et seq.)
The exceptions to the admission and exclusion of evidence will now be considered.
It was competent for the plaintiff to show that the defendants, three days after the marriage, took a conveyance to themselves of all the property of the husband and have since enjoyed it, as bearing upon their intent to deprive the plaintiff of all means of support out of the property of her husband to which she had a legal right, and also as tending to show that the defendants were interested in separating the husband from his wife. It should be stated that the defendants do not pretend to have paid anything for the deed which they received. However, the question objected to was not answered.
The defendants offered to show that the plaintiff's husband at one time was engaged to a woman in Dakota, and, impliedly, that the engagement existed at the time of his marriage, which was excluded on the plaintiff's objection, and the defendants excepted. It was not asserted that the plaintiff knew of this alleged engagement, and the fact inquired about was not relevant to any issue in the case. A prior engagement to another, of one of the parties entering into the marriage relation, fortunately does not affect the marriage, nor is it usually the cause of unharmonious relations between the husband and wife. Besides, the fact that there was such an engagement had been testified to by the defendants.
The defendants offered to read a conversation between the husband and the defendant Coulter, which I assume was narrated by the husband in his deposition, though this fact does not appear in the record. This offer was objected to by the plaintiff, excluded, and the defendants excepted. The case does not show what the conversation was, when it occurred, or to what subject it related. In case the defendants desired to rely on this exception, they should have incorporated the rejected evidence in the record, so that this court could have determined whether it was material. The trial court saw it and determined that it was immaterial, and this court cannot, without seeing it, hold that it was material.
The defendants asked the husband: "Q. Did any one tell you to get out of the way?" This question was objected to by the plaintiff, excluded, and the defendants excepted. The witness was permitted to testify: "I did not leave my wife on account of anything that either of my sisters ever said to me, nor stay away from my wife on account of anything either of them said; * * * they have not, at any time, told me not to provide for her; I have not failed to provide for my wife on account of anything either of my sisters said or did; it was my own desire to leave my wife." He also testified that he left his wife because she wanted a deed of his property and insisted on being married at the time they were married. This was all the defendants were entitled to on this subject. What any one else said to him about going away was irrelevant.
It was not error to refuse to allow the husband to testify that he had received no money from his sisters since he left Buffalo, nor was it material to show by him that the money borrowed by Mrs. Coulter on Sunday, and given him to pay the expenses of his journey, should be applied against $100 which he asserted she owed him.
The defendants asked the husband: "Q. Did you ever ask Miss Richardson to marry you?" "Q. Did she ever ask you to marry her?" These questions were objected to by the plaintiff's counsel, the objection was sustained and an exception taken. The husband had previously testified that he and Miss Richardson became engaged during the summer previous to their marriage. Pursuant to this engagement they voluntarily intermarried, and it is entirely immaterial which made the proposal. A woman has a legal right to make a proposal of marriage, and a man, like a woman, may accept or decline; and a marriage voluntarily entered into, preceded by an engagement proposed by the woman and accepted by the man, is in all respects as legal as a marriage founded on an engagement proposed by the man and accepted by the woman.
Had the fact been established that the engagement and marriage in this case were proposed by the plaintiff, it would not have justified an inference that both were not the result of mutual affection.
Which shall make the proposal is merely a matter of taste and custom.
The defendants asked the husband: "Q. Now tell us why you left your wife?" He had already stated the circumstances attending the marriage, his abandonment of his wife and his reasons therefor, and the question simply called for a summing up of the operations of his mind, and it was not error to exclude it.
The court did not err in allowing the plaintiff to show that, by reason of the conveyance of her husband's property to the defendants, nothing had been recovered under her judgment of separation for alimony or costs. In case the theory of the plaintiff was sustained by the jury, as it was, she had the right to show what she had been deprived of by the conduct of the defendants.
The alleged errors in the charge, which were not excepted to, but now complained of, are entirely insufficient to warrant the granting of a new trial on the ground that the issues were submitted upon an erroneous theory within the rule laid down in Whittaker v. Delaware Hudson Canal Company (49 Hun, 400) and kindred cases.
It is urged that the court erred in saying to the jury that if they found that William A. Wilson testified untruthfully in respect to the plaintiff's conduct in inducing him to marry her, they might, if they saw fit, disregard his evidence in relation to other subjects testified to by him. The jury was not advised to disregard his evidence in other respects if he were found to have testified untruthfully upon one issue, but was simply told that his untruthfulness upon one issue, if so found, might be taken into consideration in determining the truthfulness of his testimony on other issues. The instructions were clearly within the rule of the cases arising under the maxim, "False in one, false in all."
The court told the jury that Mrs. Coulter said to her brother "that he was either a goose or a fool to marry this woman," and it is urged by the defendants that there is no evidence of such a statement. John E. Pound, the referee before whom the limited divorce action was tried, testified that Mrs. Coulter swore before him: "We were all angry over it. We scolded him for being such a goose or fool."
The reference made by the court to the treatment of the plaintiff by the defendants and their hired help was borne out by the evidence. The employees of the defendants took part in beating of pans and blowing of horns and were not restrained by the defendants, although they were present.
The court did not assume that the plaintiff's husband was influenced to separate from her by the defendants, nor did it instruct the jury that the declarations made by the husband in respect to his intention not to live with the plaintiff were immaterial, but instead told the jury that if these declarations were made prior to being influenced by the defendants, they were material declarations indicating a purpose on his part to abandon his wife by his own free volition. Nor was there error committed at folio 476. The defendants made no pretense that they desired their brother to return to and live with the plaintiff. Mrs. Coulter went alone and on her own account the day succeeding the marriage to see if it could not be annulled. Both defendants testified that they advised the plaintiff's husband to fight out the question of the marriage with the plaintiff. After the court had submitted the principal issue of fact to the jury — whether the defendants did induce or persuade the husband of the plaintiff to remain away from her — it said that the action was based in part on "the loss of the conjugal society which of right should exist between a husband and his wife and which the plaintiff has been deprived of in consequence of the wrongful and unlawful acts of the defendants."
Reading the parts of the charge immediately preceding and succeeding this instruction, it is plain that the judge did not intend to take the principal question of fact from the jury, and that the jury could not have so understood him. The court did not instruct the jury that the plaintiff was entitled to recover, and that the only question for them was that of damages. Not one of the foregoing instructions discussed was excepted to by the counsel for the defendants, and, if every one of the instructions had been, no error would have been presented.
Upon the request of the plaintiff's counsel the court charged: "There is no evidence in the case that would legally justify the plaintiff's husband in abandoning her." To this the defendants excepted.
I am unable to find any evidence in this record, given in behalf of the defendants, which, if believed, would have justified or excused the husband for deserting his wife.
The defendants requested the court to charge that the plaintiff could not recover damages subsequent to August 10, 1895, when she began her action for a separation on the ground of desertion; and also that she could not recover damages after April 1, 1896, when the judgment in that action was entered. The court replied: "On that subject, gentlemen, I will charge you that if it was the plaintiff's desire and wish to become separated from her husband at the time and end her relations with him, rather than to live with him as her husband, then you will not take into consideration her loss of his conjugal society after that period. But if, on the other hand, you find that she desired to live with her husband, but was unable to find him, to locate him, and that this action of separation was instituted under the circumstances and as the necessary result of the action of these defendants in inducing her husband to leave her and remain away from her, and as a necessary course for her in order to obtain some provision for her maintenance and support, then you are entitled to still take into consideration, as charged by the Court before, all the loss of the conjugal society resulting from the wrongful act of the defendants."
The defendants excepted to the refusal to instruct as requested, and to the instructions given.
In actions of this character the plaintiff is entitled to recover damages not only for the loss of her husband's society, but for the loss of his support and maintenance to which the marriage relation entitles her from the husband and his estate. In case the jury found that the plaintiff did not prosecute her action for a separation because of her desire to live apart from her husband, but because she was unable, by the action of the defendants, to learn his whereabouts and induce him to return, then the permanent loss of his society and support could be taken into account by the jury on the question of damages.
An examination of all the questions discussed by the learned counsel for the appellants in his brief, and orally at the bar of this court, fails to disclose any just or legal ground for reversing the judgment, which, with the order denying a motion for a new trial, should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.