Parker v. Newman , 200 Ala. 103 ( 1917 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This action is for the alienation of the affections of appellee's husband.

The complaint was a sufficient statement of the right of action.

Defendant had the benefit, under the general issue, of the matter sought to be specially pleaded.

The court committed no error in overruling defendant's motion for a continuance on the ground that the interrogatories were unanswered. Russell v. Bush, 71 So. 397;¹ Berthold Jennings Lumber Co. v. Phalin Lumber Co., 71 So. 989;² Hass Lumber Co. v. Gibson, 172 Ala. 111, 54 So. 994, Ann. Cas. 1913D, 497. The plaintiff had all of the thirtieth day in which to answer the interrogatories before she was in default.

It was a matter of discretion with the trial court, as to requiring the trial to proceed on the day the same was reached.

Against the right of the wife to sue for damages for alienation of the husband's affections, appellant's counsel cites Farmer v. Farmer, 86 Ala. 322, 5 So. 434, and section 2466 of the Code of 1907. The Farmer Case was for divorce, and the question of condonation of adultery was there discussed. By section 2466 of the Code there is given a right of action to the husband for adultery or criminal conversation with the wife. This, however, is no denial to the wife of a right of action for alienation of the husband's affection, if that right otherwise existed.

Of her statutory rights, section 4493 of the Code provides that the wife may sue alone at law or in equity, upon all contracts made by her or with her, or for the recovery of her separate property, or for injuries to such property, or for its rents, income, or profits, "or for all injuries to her person or reputation."

And section 4489 of the Code provides that all damages which the wife may be entitled to recover for injuries to her person or reputation is her separate property. It is thus apparent that the legislative intent was to give to the wife the right of action in such matters that had been accorded to the husband. People's Home Tel. Co. v. Cockrum, 182 Ala. 547,62 So. 86; Town of Elba v. Bullard, 152 Ala. 237, 44 So. 412; Engle v. Simmons, 148 Ala. 92, 41 So. 1023, 7 L.R.A. (N.S.) 96, 121 Am. St. Rep. 59, 12 Ann. Cas. 740; Code, §§ 4486-4504. These statutes are declared to be remedial, and should be construed to effect the purpose of the Legislature. Knight v. Coleman, 117 Ala. 266, 22 So. 974; Hays v. Bowdoin et al., 159 Ala. 600, 49 So. 122.

In Engle v. Simmons, supra, it was held that where the defendant entered the dwelling and by threats, or rude or boisterous conduct, put the wife in fear, she may recover for the personal injury sustained. The court said:

" 'Nor does it matter, in our judgment, that the trespass was committed on property belonging to the husband. It was her home as well as that of her husband, and any unlawful entry or invasion thereof which produced physical injury to her was a wrong for which she ought to recover.' Nor is it important that no physical violence was done her person. * * * The plaintiff here was in her home, and had a right to the peaceful and undisturbed enjoyment of the same, and any unlawful entry or invasion thereof, which produced physical injury to her, whether by direct personal violence, or through nervous excitement the proximate result of the wrongful acts of the defendant, was a wrong for which she is entitled to recover."

Discussing the Engle Case (Spearman v. McCrary, 4 Ala. App. 473,58 So. 927), Judge Walker said:

"This was a case of a trespass upon the plaintiff's home. The plaintiff there had a right of action because of the trespass, and the question was as to her right to recover damages for physical injury resulting from fright caused by the circumstances of the trespass. * * * The result of our examination of the authorities on the question under consideration and of the reasons advanced to support the conflicting views of different courts is that we reach the conclusion that the complaint was not subject to demurrer because of its failure to show that the plaintiff sustained any physical injury otherwise than the result of fright or mental shock." Birmingham Realty Co. v. Thomason, 8 Ala. App. 535,63 So. 65.

These cases illustrate the construction given the statute of the wife's right of suit for injuries "to her person."

It is said to be an open question in England whether a wife has a right of action for the deprivation of her husband's society. Clark Lindell's Torts (6th Ed.) p. 245. However, in Lynch v. Knight, 9 House of Lords Cas. 577, 589 (1861), a majority of the law lords express an opinion in favor of the existence of such a right of action. In the United States, the prevailing view is that the wife may recover for the alienation of the husband's affection, or for criminal conversation with him.

In the leading case (1889) of Foot v. Card, 58 Conn. 1,18 A. 1027, 6 L.R.A. 829, 18 Am. St. Rep. 258, the court said:

"Inasmuch as by universal consent it is of the essence of every marriage contract that the parties thereto shall, in regard to this particular matter of conjugal society and affection, stand upon an equality, we are unable to find any support for the denial in this reason, and the right, the injury, and the consequent damage being admitted, then comes into operation another rule, namely, that the law will permit no one to obtain redress for wrong except by its instrumentality, and it will furnish a mode for obtaining adequate redress for every wrong. This rule, lying at the foundation of all law, is more potent than, and takes precedence of, the reason that the wife is in this regard without the pale of the law because of her inferiority."

In Wolf v. Frank, 92 Md. 138, 142, 48 A. 132, 52 L.R.A. 102, the cases are collected, as authority for the several grounds on which is rested the right of the wife to sue for such torts committed against her marital rights.

Most of the American courts have asserted this equality of husband and wife in the right to conjugal affection, society, and aid; and where the right of action is not sustained in her on the theory of the policy of the law to afford a remedy wherever an injury has been suffered, the right is based upon the statutes of removal of disabilities of the married woman. 1 Standard Enc. of Pr. 771 (3), note 7, where the authorities are collected from all the states.

In Keen v. Keen, 49 Or. 364, 90 P. 147, 10 L.R.A. (N.S.) 504, 14 Ann. Cas. 45, and Beach v. Brown, 20 Wn. 266,55 P. 46, 43 L.R.A. 114, 72 Am. St. Rep. 98, this right was held to exist, and to be maintainable by the wife though she has divorced the husband; and in Foot v. Card, supra, and 1 Cooley's Torts (3d Ed.) p. 479, though the husband has not separated himself from her. In Holmes v. Holmes, 133 Ind. 386,32 N.E. 932, it was held that the alienation of the affections of a woman's husband being a violation of her personal rights, she may sue therefor in her own name, under Revised Statutes 1881, § 5131, providing that "a married woman may sue in her own name for an injury to the person." Some of the statutes, held to confer on the wife this right of suit for alienation contain the expression, "for any violation of her personal rights." Clow v. Chapman, 125 Mo. 101, 28 S.W. 328, 26 L.R.A. 412, 46 Am. St. Rep. 468; Seaver v. Adams, 66 N.H. 142,19 A. 776, 49 Am. St. Rep. 597.

In 1 Jaggard on Torts, p. 468, the author collects the authorities to support the view that in natural justice no reason exists why the wife may not maintain an action against the seducer of her husband, and that her right of action against such seducer is "coextensive with his right of action against her seducer," and that "the weight of authorities and the tendency of legislation strongly incline to the latter opinion."

In a note to the second edition of Cooley's Torts, § 228, the author sees "no reason why such an action should not be supported, where, by statute, the wife is allowed, for her own benefit, to sue for personal wrongs suffered by her; and it is held that she may maintain an action in her own name for alienating the husband's affections and causing a separation. Breiman v. Paasch, 7 Abb. N.C. (N.Y.) 249; Warner v. Miller, 17 Abb. N.C. (N.Y.) 221; Jaynes v. Jaynes, 39 Hun, 40; Mehrhoff v. Mehrhoff (C. C.) 26 Fed. 13." And in the third edition of Cooley's Torts, pp. 475, 476, 480, it is stated that at least 20 states now hold that such an action may be maintained, some basing their conclusions upon common-law principles and some more or less upon the various enabling statutes in favor of married women which have been passed in recent years; and that the courts of only 5 states hold that the action will not lie. Mr. Bigelow (Torts, 153) said:

"To entice away, or to corrupt the mind and affections of one's consort is a civil wrong for which the offender is liable to the injured husband or wife."

See, also, on this question, 21 Cyc. 1618; 3 Mod. Am. Law, 315; Humphrey v. Pope, 122 Cal. 253, 54 P. 847; Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397; Baker v. Baker, 16 Abb. N.C. (N.Y.) 293; Bennett v. Bennett, 116 N.Y. 584,23 N.E. 17, 6 L.R.A. 553; Betser v. Betser, 186 Ill. 537,58 N.E. 249, 52 L.R.A. 630, 78 Am. St. Rep. 303.

On this authority, and under our statute, it is clear that the violation of a woman's marital rights is a violation of her personal rights, and that a right of action therefor is secured to her in this state. In Stark v. Johnson, 43 Colo. 243,95 P. 930, 16 L.R.A. (N.S.) 674, 127 Am. St. Rep. 114, 15 Ann. Cas. 868, it is pertinently remarked, touching the proof necessary to sustain such an action, that although it is usual to allege the seduction of the wife and the consequent alienation of her affection, proof of such alienation is not necessary to the husband's right of action. Evidence of such matters is admissible as affecting the aggravation of the offense and the amount of damages to which the plaintiff is entitled. "The essential injury to the husband consists in the defilement of the marriage bed." 8 Am. Eng. Ency. Law, p. 268, § 5; Bigaouette v. Paulet, 134 Mass. 123, 45 Am. Rep. 307; Yundt v. Hartrunft, 41 Ill. 9.

So in suit by the wife for criminal conversation with her husband, proof of two facts is essential to her recovery, viz., marriage and adultery. And damages for adultery or criminal conversation may include compensation for mental suffering of the husband or wife whose marital rights are thus violated. Long v. Booe, 106 Ala. 570, 17 So. 716; Prettyman v. Williamson, 1 Pennewill (Del.) 224, 39 A. 731; Smith v. Meyers, 52 Neb. 70, 71 N.W. 1006; Cross v. Grant, 62 N.H. 675, 13 Am. St. Rep. 607; Speck v. Gray, 14 Wn. 589, 45 P. 143.

The plaintiff prepared a list containing the dates when she saw her husband with the defendant, and she testified that the same was correct. No error was committed by allowing its introduction as evidence. It was only incidental to the matter in issue. Mobile, J. K. C. R. R. Co. v. Hawkins, 163 Ala. 565,51 So. 37; Street v. Nelson, 67 Ala. 504.

The witness Howell, having testified to the defendant's general reputation in the community where she lived, was properly permitted, on cross-examination, to be asked if he knew "anything about her reputation out in the country since she moved," for the purpose of testing the sincerity or the knowledge of the witness. McCutchen v. Loggins, 109 Ala. 457,19 So. 810; 5 Jones on Ev., 257.

The trial court committed no error in permitting witness Walker to answer the questions tending to test her interest or bias. Patton v. State, 72 So. 401;³ A. G. S. R. R. Co. v. Johnston, 128 Ala. 283, 29 So. 771. The subsequent question denied by the court was practically answered in the preceding question, which assumed the existence of the same facts.

The terms upon which the husband and wife lived together before the adultery, criminal conversation, or seduction are relevant to the issue. Long v. Booe, supra; 1 Greenl. Ev. 162a-c.

The fact that the husband and wife had had domestic trouble a number of years before the action was brought cannot be made the basis of a presumption that this discord continued to the time of the trial, and especially, in view of the testimony to the effect that plaintiff and her husband were living together happily before plaintiff's husband knew the defendant. So long as the husband or the wife keeps the marriage contract the right to the conjugal aid, society, and affection of the other life partner exists. Though lost for a time, such privilege may be regained; and this is a valuable right that no third person may knowingly violate with impunity. Foot v. Card, supra. The defendant sought to lay a predicate, as to the past declarations of plaintiff, of her affection for her husband. The question propounded to plaintiff as a witness, and to Mr. Burgess, was competent, as tending to show "the terms upon which the husband and wife lived together before the seduction," for the purpose of reducing damages. The evidence was offered without restriction; however, the objection thereto was specific.

Although the conversation sought to be inquired about was remote and before plaintiff's husband knew the defendant, yet it was competent, as it might tend to minimize the damages. For the exclusion of this testimony the judgment must be reversed and the cause remanded. We cannot say that the error of its exclusion was cured by permitting defendant to show by other witnesses and Burgess the fact inquired about; that is, the fact of jealously, on the part of the wife, of the woman inquired about.

There was no error committed in the cross-examination of witness J. H. Heath. His testimony tended to show that no improper relation subsisted between plaintiff's husband and Mrs. Parker, and to explain their being together on the occasions detailed by witness. It was permissible to test the witness' statements by asking him if he had not tried to induce the defendant to "quit going with" the plaintiff's husband.

There are many assignments of error on questions of impeachment of the defendant.

In civil cases especially, character evidence pertaining to the litigants is usually excluded. When, however, from the nature of the case, the character of the person is one of the many facts in issue, evidence of such fact is admissible. For example, in an action for libel or slander, the injury to the plaintiff's character is the gist of the action, and in actions for seduction or criminal conversation, chastity is a main fact in issue. Evidence of such general reputation is therefore relevant.

The defendant was properly permitted to introduce evidence of her general character, as an evidential fact; and by becoming a witness in her own behalf she put her general character for truth and veracity in issue.

Character evidence of a party to a litigation and character evidence of a witness for veracity are so separate and distinct that they should be carefully distinguished. Smith v. State, 72 So. 316.⁴ In the former case, character is a fact in issue or an evidentiary fact to the fact in issue. In the latter case it is neither, but merely a fact which comes into the case in a collateral way. It does not pertain to the truth or veracity of the issue being tried, but merely to the weight of the evidence of the particular witness. Hughes on Ev. p. 43, § 9.

When the veracity of a witness is sought to be impeached, the impeaching or sustaining witness must have knowledge of the general reputation or character of the witness sought to be impeached in the community or neighborhood in which the latter resides. Haley v. State, 63 Ala. 83; Sullivan v. State, 66 Ala. 48; McQueen v. State, 108 Ala. 54, 18 So. 843; Baer Co. v. M. C. B. M. Co., 159 Ala. 491, 49 So. 92; 5 Jones on Ev. p. 257.

When in a civil case a party thereto testifies, he is open to impeachment, by its being shown that he has been convicted of a crime involving moral turpitude, or that he has made contradictory statements, or that his conduct has been such as to contradict his testimony, or that he is a person bearing a bad reputation or character. Smith v. State, 72 So. 316;⁴ Carpenter v. State, 193 Ala. 51, 69 So. 531; Thompson v. State, 100 Ala. 70, 14 So. 878; 5 Jones on Ev. §§ 845, 859.

In impeaching the credibility of a witness, the inquiry is not limited to the general reputation, in the community or neighborhood in which such witness lives or is known, for truth and veracity, but extends to the witness' general character. Ward v. State, 28 Ala. 53; McCutchen v. Loggins, 109 Ala. 457,19 So. 810; Rhea v. State, 100 Ala. 119, 14 So. 853; Crawford v. State, 112 Ala. 1, 21 So. 214; Story v. State,178 Ala. 98, 59 So. 480; Davenport v. State, 85 Ala. 338,5 So. 152; Byers v. State, 105 Ala. 31, 16 So. 716; Swint v. State, 154 Ala. 46, 45 So. 901.

The questions of impeachment directed to the several witnesses related to the general reputation of the defendant in the community where she lived. The defendant had put her good character in issue as an evidentiary fact and as a witness, and the plaintiff could reply by like testimony touching character up to the time of the occurrences on which the suit was based. Thereafter plaintiff's impeaching evidence should have been limited to the issue of the truth and veracity of the defendant as a witness in her own behalf. On motion of the defendant, the court properly limited this testimony to its effect on the credibility of the defendant as a witness, and no error was committed by the trial court in admitting the character evidence objected to by defendant. Smith v. State, supra.

It is insisted by appellant that the court committed error in refusing to admit in evidence a letter acknowledged by witness McBryde to have been written by him to plaintiff's husband. It is a general rule that matter may be elicited on cross-examination to show the nature and extent of the witness' bias or interest as to the parties or as to the issue. Patton v. State, 72 So. 401;⁵ A. G. S. R. R. Co. v. Johnston, supra; Estes v. State, 140 Ala. 151, 37 So. 85. The witness had testified only of the defendant and the plaintiff's husband's being together on different occasions, detailing no evidence of their improper or criminal conduct. The fact that defendant and plaintiff's husband were often together was not denied, and was shown, not only by McBryde, but by many other witnesses who were without bias or interest. The testimony of McBryde was but corroboration of the testimony of these disinterested witnesses. The letter tended to show feeling or bias on the part of McBryde towards Newman, only in the event that Newman made the statement inquired of. It is not probable that the jury would have given to McBryde's testimony other consideration than they did, since the witness had admitted his interest in plaintiff's behalf. Had the letter been admitted, the issue being tried would have been confused with the further inquiry whether Newman made the statement inquired about in the letter. We do not think that the case should be reversed on the ground that the letter was not admitted in evidence.

The plaintiff was properly allowed to state, on redirect, that after she had seen the entry in her husband's diary, referring, as it did, to Mrs. Parker, and called his attention thereto, he changed or erased that entry. Plaintiff's husband had testified touching this entry and its change, and plaintiff was permitted to show that the change was made by Newman under the circumstances detailed.

The authorities we have collected abundantly support the court's statement of the law of the case. The case was properly submitted to the jury under the evidence. The affirmative charge requested by the defendant was properly refused under the evidence, and no error intervened in the court's oral charge.

Defendant's requested charge 4 was properly refused. It pretermitted the wrongful conduct of the defendant with O. A. Newman.

Charge 9 was properly explained, and was not qualified.

Charges 1, 2, 3, 6, and 8 were properly refused. Even though the plaintiff and her husband were, at the time of the trial, living together as man and wife, this fact alone would not defeat her right of recovery for defendant's willful violation of plaintiff's marital rights.

Charge 5 was properly refused. So long as the wife kept her marriage contract, she had the right to the conjugal affection, society, and aid of the husband, freed from the adultery and criminal conversation of other women with him, with the knowledge of his being at the time a married man. Without condemning the charge as an incorrect statement of the law applicable to such cases, it is sufficient to say that in the form which it presents by the use of the word "now," it was well calculated to mislead the jury; and for that reason, if for no other, it was properly refused.

Reversed and remanded.

McCLELLAN, MAYFIELD, and SOMERVILLE, JJ., concur.

On Rehearing.¹ 196 Ala. 309.

² 196 Ala. 362.

³ 197 Ala. 180.

⁴ 197 Ala. 193.

⁵ 197 Ala. 180.