Long v. Booe , 106 Ala. 570 ( 1894 )

McCLELLAN, J.

— The several exceptions reserved to testimony as to conversations between Booe and his wife on the occasion when the latter’s adultery with Long was made known to the former were emasculated by the subsequent exclusion of all such evidence, except in so far as it went to show the naked fact of Booe’s coming at that time to a knowledge of the infidelity of his wife ; and we do not understand that the competency of the testimony for this limited purpose is questioned by the appellant.

The only other exception taken to the admission of testimony had reference to letters which passed between the husband and wife prior to her infidelity, and which contained mutual expressions of love and affection for each other. There can be no doubt upon principle or authority of the propriety of the trial court’s action in admitting these letters to “show the terms upon which the husband and wife lived together before the seduction.” — 1 Greenl Ev., § 102 note.

The city court properly charged the jury to bring in a verdict for the plaintiff, if they believed the evidence. This practically left open for consideration only the amount of damages to be awarded. Charge 4 given at plaintiff’s, request has reference to the damages to be awarded, and is not, in our opinion, open to the objections urged against it by the appellant. While ordinarily the court in chai’ging the jury should not assume the-.existence of .a. fact shown, only -by parol, evidence, ■h.owever free from conflict such evidence may be; yet when all the evidence goes without conflict to the establishment of a fact against a party to the cause, and a part of that evidence is the solemn admissions of such party himself, made under oath and in the presence of the court, that the fact does exist, the rule we have adverted to does not apply, and the truth of the evidence may be assumed by the court. In such case the fact being clearly proved, and not only not controverted but affirmatively admitted, there is no occasion to leave the ascertainment of it to the jury. — Carter v. Chambers, 79 Ala. 223 ; Marks v. Robinson & Ledyard, 82 Ala. 69, 83; Brinson v. Edwards, 94 Ala. 447, 455. This charge (4) assumes merely that the defendant pursued plaintiff’s wife with his attention, that is, continued his attentions to her and their illicit relations, after she had joined her husband in Birmingham. This is fully shown by the evidence of Mrs. Booe, is not at all controverted by any witness directly or inferentially, and is unequivocally admitted by the defendant himself. There was, therefore, no unwarranted assumption of fact in this instruction ; and the soundness of the proposition it asserts, that defendant’s continued defilement of the plaintiff’s wife after she had rejoined her husband was a matter to be looked to by the jury in the assessment of damages, is obvious.

In actions for criminal conversation prosecuted by a husband for the defilement of his wife it is usual to claim damages for the loss of the wife’s services. That claim is made' in this case. There was evidence that plaintiff and his wife had been living together as man and wife for two or three weeks before the trial. There was no evidence of the value of the wife’s services, or the pecuniary loss to the plaintiff from a deprivation of her services during the period they had lived apart in consequence of her relations with the defendant. Upon this state of case,' the defendant requested the court to charge the jury, (2), that the plaintiff was not entitled to recover any damages ‘ ‘for the loss of the association •and services of his wife” for the two or three weeks just before the trial during which they had been living together as husband and wife; and further (charge 3) that if the jury believe the evidence “they cannot find any damages for any loss of services o,f his, plaintiff’s, wife alleged to have been caused by the alleged wrongs of the defendant.” These requests proceed upon a mistaken idea as to what the term 1 ‘services” means in this class of actions. It does not mean labor performed. It does not necessarily mean assistance in any material sense. The deprivation of services in this connection does not necessarily or ordinarily involve or imply a loss measurable by pecuniary standards of value such as ob* tain where the master is deprived of the labor of his servant, or oven where the father is deprived of the help of his daughter. But the term, as employed here, is, as said by Judge Cooley, “used in a peculiar sense, and fails to express to the common mind the exact legal idea intended by it. "Whatever may have been the case formerly,” he continues, “or may now be the case in some states of society, services in the sense of labor or assistance, such as a servant might perform or render, is not.always given by or expected from the wife ; and if an action were to put distinctly in issue the loss of such services, it might perhaps be shown in the most serious cases that there was really no loss at all. But it could not be reasonable that the wrongdoer should escape responsibility because the family he has wronged were in such circumstances, moved in such circles, or were subject to such claims by reason of public position or otherwise, that physical labor by the wife was neither expected nor desired. The word service has come to us in this connection from the times in which the action originated, and it implies whatever of aid, assistance, comfort and society the wife would be expected to render or to bestow upon her husband, under the circumstances and in the condition in which they may be placed, whatever those may be. That services in the ordinary sense were not rendered at all would be immaterial and irrevelant, except as the fact might, under some circumstances, tend to show a want of conjugal regard and affection, and thereby tend to mitigate the damages.” — Cooley on Torts, p. 226. And to like effect is the language of the Supreme Court of Massachusetts : “A husband is not master of his wife, and can maintain no action for the loss of her services as his servant. His interest is expressed by the word consortium,; the right to the .conjugal fellowship of his wife, to her company, cooperation and aid in every conjugal relation. •*.. * * * * A husband who is living apart from his. wife, if he has not renounced his marital rights, Can maintain the action, and it is not necessary for him to prove alienation of the wife’s affection or actual loss of her society and assistance.” — Bigaouette v. Paulet, 134 Mass. 123 ; s. c. 45 Am. Rep. 307. - Again it is said: “The damages allowed in suits for criminal conversation are penal rather than compensatory, for the plaintiff is entitled to substantial damages though he prove no resulting expense or loss of society or services.” — 9 Am. & Eng. Encyc. of Law, p. 835. And the theory that the injury wrought by the wrongdoer in such cases to the husband is an injury to his feelings, his comfort, his pride, his affections and to his conj ugal rather than his property rights, and is to be measured by standards which take no account of the loss inflicted upon his estate by the deprivation of services to the results of which he is entitled, is illustrated and has been fully recognized by this court in Garrison v. Burden, 40 Ala. 513, where it is held that this is an action “for injuries to the person or reputation” of the plaintiff, and for that reason does not survive the death of the wrongdoer under section 2600 of the Code. The manifest pui’pose of the charges in question was, and their effect would have been, to confine the jury ixi their assessment of damages to a consideration of services as labor or assistance such as a servant might perform or render; and they were, therefore, properly refused:

The foregoing considerations will serve also to indicate the ground of our conclusion that the fact that uxxder present statutory provisions the wife is entitled to her owxi earnings is of xio coxxseqxxence ixi actions for criminal conversation. — Cross v. Grant, 62 N. H. 675 ; s. c. 13 Am. St. Rep. 607.

This actioxx is transitory : place is xxot of the essexxce of it, xieed xiot be alleged, axicl if alleged, the averment is .treated as formal merely, and it xxeed xiot be proved. — 1 Am. & Exig. Encyc. of Law, p. 184; 18 Am. & Exig. Exicyc. of Law, p. 570 ; 1 G-reenl. Ev., § 61; Huckabee v. Shepherd, 75 Ala. 342. Hence it is that, although the first count of the complaint avers that the wrongs of the defendaxit were committed ixi Jefferson-county, evidexice of their commission in Walker county or elsewhere .would have supported the complaint, the averment of place- being immaterial axid xiot descriptive of the material thing done ; and there being evidence of the commission of the alleged wrongs in Jefferson county, it was competent to show in connection therewith and in aggravation thereof that these wrongs were but the continuation of a liaison previously begun in Walker county. Charges 4 and 4i were, we think, for these reasons well refused to the defendant.

The witness Root was a youth under twenty-one years of age. His credibility was sharply in issue, before the jury. It was, we think, within the discretion of the trial court to allow the plaintiff to draw from him on cross-examination the fact that his father had been in the employment of the defendant’s father, he having testified for the defense. The matter was before the court below upon the manner of the witness in a much fuller light than it could be presented here, and we are not prepared to say but that the fact thus adduced tended to show relations between the families of the witness and defendant, when taken in connection with the witness’s demeanor on the stand, from which the jury might have inferred a bias on the witness’s part in favor of the defendant. The matter was in the discretion of the city court. — Miller v. Smith, 112 Mass. 470; Com. v. Lyden, 113 Mass. 452 ; Amos v. State, 96 Ala. 120, 125 ; Phoenix Ins. Co. v. Copeland, 86 Ala. 551, 558.

We have discussed all the points insisted upon in the brief of appellant’s counsel, and considered exceptions reserved but not treated in the brief. We find no’ error in the record, and the judgment must be affirmed.