Ruby v. Lawson , 182 Iowa 1156 ( 1918 )

Ladd, J.

1. Husband and wipe : entlcing and alienating : seduction : evidence : sufficiency. This is an action for criminal conversation, in which appellant contends that the evidence was insufficient to sustain the verdict, in that: (1) Plaintiff’s wife was Avithout affection for him, and therefore alienation was impossible; (2) no arts were practiced by defendant to alienate; and (3) no damages were proven.

2. Seduction : acts constituting : arts employed: circumstances of parties. Plaintiff was married to his wife October 31, 1896. There were born to them eight children. Until her acquaintance with defendant, they appear to have lived together happily, save that he had left her, two or three years previously, when living in Keokuk County, for several months, though with sufficient funds for the maintenance of the family. Upon arrest for wife desertion, he brought the entire family to Des Moines, where they have since resided. From August 22, 1911, they occupied the second story of defendant’s house as tenants, and thereafter, defendant visited her frequently. This is not denied, nor is there conflict in the evidence as to defendant’s having accompanied her “down town,” to picture shows, to the potato patch to aid in hoeing, to another house, unoccupied, belonging to him, and treating her to candy, bananas, and apples, and at one time buying her a 98-cent hat, a 50-cent fascinator, and a 10-cent pair of stockings. Whether these gifts occurred before or subsequent to the first yielding to his embraces she is somewhat confused, though sure that he gave her as much as 50 cents after each of several indulgences. Moreover, she swore that defendant told her that he liked her “better than any woman he ever saw or ever would see. He said it more than once. I thought pretty well of him.” True, she had previously declared that she “never did love Lawson;'” that she “never thought very much of him;” that he “never took my affection, but I did his;” but later, she explained that, though she “did not love' him,” she “thought pretty well of him,” “right smart of him,” “had affection for him;” that she thought him “a nice .man,” “loved him some.” From this, the jury might have found that he had ingratiated himself somewhat into the graces of this woman, and, as she declared, — though he denied, — indulged in sexual intercourse with more or less frequency during a period of about 18 months.

It may be that the arts said to have been practiced ■were somewhat crude, but the jury might have found them sufficient to lead this woman from virtue’s way, and this was enough; and it is idle to argue that the evidence did not warrant a finding that defendant so intended. If she first yielded on the mere asking, this was after previous intimacy, and, as might have been found, the sort of flattery calculated to touch the feminine heart. Nor will the circumstance that they indulged in an outhouse or tent or vacant dwelling house, or even in a potato patch, obviate this; for these resorts cannot be said to be other than such persons are likely to choose.

3. Husband and wife : criminal conversation : previous unchastity of wife : effect. The defendant was a common laborer and ditch digger, who, through industry and economy, had acquired the house in which plaintiff liv.ed and another; and she, the wife and housekeeper of another common laborer, who, though industrious, could scarcely have earned enough to sustain his family.

4. Husband and wife : criminal conversation : verdict: $100 : excessiveness : degraded nature of parties. That persons so situated might resort to such places for the gratification of their passions is not unlikely. Nor is the acceptance of presents as small as 50 cents by a woman in such circumstances to be regarded as peculiarly degrading, so much so as to brand her as a prostitute, or as having been without affections. Though to be denounced as immoral, such matters are not necessarily to be construed as indicating previous unchastity on the part of the woman. Even if the jury might have found her to have been of previous unchastity, there was no evidence of plaintiff’s knowledge thereof or consent thereto; and therefore, proof thereof would not have constituted a defense. Stumm v. Hummel, 39 Iowa 478. It would have been a proper matter to consider in mitigation of damages (Smith v. Hockenberry, 138 Mich. 129 [101 N. W. 207], and cases collected in 21 Cyc. 1632), had the matter been so pleaded. Frank v. Berry, 128 Iowa 223. The record contains no plea in mitigation, and her character in. this respect was not in issue. Again, it is argued that plaintiff was unkind to his wife. If he spoke roughly to her, even to indulging in profanity, or joked coarsely at her expense, it is to be said, in extenuation, that both, apparently, were uneducated, and, neither through natural inclination nor environment, likely to exhibit much consideration or sentiment for the opposite sex. The attachment of each for the other may have been more physical than ethical, — more Plutonic than Platonic; but such as it was, might not lawfully be interfered with by defendant. She testified thát she had always loved her husband, and, though this was in her peculiar way, proof of its quality, to be considered in measuring the damages, may not be interposed as a defense. The credibility of the several witnesses was for the determination of the jury, and its finding that defendant had induced violation of the marital obligations has such supimrt in the evidence as to preclude interference with the verdict. Nor can it be said that the damages allowed ought to have been no more than nominal. The natural mortification and sense of shame usually incident to such wrongs would exact more than that. The consequent loss of comfort in the wife’s society and the impairment of her affections, such as they were, ought not to be thus arbitrarily measured. As declared in Torre v. Summers, 2 Nott & McC. (S. C.) 270 (10 Am. Dec. 599) :

“Would the seducer ask himself what damages would requite him, were he the injured husband, he would probably conclude that, as the brutal ravisher of a woman should be prepared to meet death, so the deliberate seducer of his neighbor’s wife cannot look for less than pecuniary ruin; and he would then, too, admit that society should be as ready to recompense the injured' husband and to punish his wrongdoer, as the immediate sufferer himself. Would he, when practicing arts of seduction, but ask himself what would be his feelings were his wife or his daughter defiled, even the gallant, gay ‘Lothario, warm with the Tuscan grape and high in blood,’ might pause, reflect, and say to himself, ‘I will not for this end, and to her ruin, seek the weak Calista, to break the peace even of Horatio, though I love him not. I will not be the villain’s spider of society, to watch where weakness strays, and to weave meshes on the way, that innocence may be entrapped. I will not be the reptile that unpity mg sees the agony which follows from ¡the agency of Ms snares.’’ ”

Damages such as may be awarded can but inadequately compensate for such a wrong; and for this reason, courts rarely, if ever, interfere with the measure meted out by the jury. We discover no ground for regarding the verdict unsupported by the evidence, or excessive in the damages allowed. — Affirmed.

Preston, G.: J., Weaver, Gaxnor, and Stevens, JJ., concur.