Sieber v. Pettit , 200 Pa. 58 ( 1901 )

Opinion by

Mb. Justice Dean,

Seiber, the plaintiff, and his wife, Anna B. Jacobs, were married in December, 1878. So far as appears they were at the time reputable young persons ; she was the only daughter of. a wealthy and prominent citizen and inherited most of his estate; both moved in the best social circles of the neighborhood. After marriage they went to housekeeping in Port Royal, a village in Juniata county, and lived happily together until 1893. In the mean time two children were born. The defendant Pettit was a reputable country merchant of the village having a wife and family. In the year 1893, an intimacy sprang up between Pet-tit and Mrs. Seiber, which continued to the year 1895. From the first it was of such character as to attract the notice and suspicions of the neighborhood; in fact, the conduct of both parties was so significant of wrongdoing, that it would have been strange, if it had not created doubts of innocence. When the husband, Seiber, became convinced of the guilt of his wife and the criminal conduct of Pettit, he separated from her and brought this suit for damages.

The manifest weight of the evidence clearly established the fact of criminal intimacy. True, defendant denied under oath actual adultery; but the wife’s own testimony admitted it; not occasionally, but time after time, kept up weekly for years, accompanied with numerous facts and circumstances, and her story was corroborated throughout, not only by proof of these circumstances, but by the testimony of numerous witnesses as to the truth of her testimony in every particular except the actual sexual intercourse. If ever the manifest weight of the testimony established a fact, it established here, long continued adulterous intercourse.

But, the evidence pointed with more or less significance to the fact, that the wife was as active in luring him from the path of virtue as he was in enticing her into his embraces. But at the trial of the cause the learned judge of the court below, seems to have assumed that plaintiff’s wife was a wanton, and that defendant was a weak brother, who fell because of her allurements, and therefore she was deserving of censure, he of sympathy. Actuated by this sentiment, which did him no discredit if displayed elsewhere than in the court room, he fell into grave error. His charge made the case to turn on the fact of sexual intercourse, which in the face of the undisputed evidence could not reasonably be questioned, instead of on the extent of damages which was fairly in dispute. He gave undue prominence to the oath of defendant, and belittled all the evidence of plaintiff. The charge was partial, and did gross injustice to plaintiff, who was a wronged husband.

The man who breaks up the home of his neighbor, by debauching his wife, rendering his children worse than motherless, is not excused because he is weak and being tempted by the woman falls. The wronged husband’s right of action is still well founded. Less money may indemnify him for the loss of such a wife’s affection and society, and a milder penalty may suffice to punish such a degree of guilt on the part of the man, but the essence of the action, a wrong and injury to an innocent husband, remains. And this is the theory, and the only correct theory on which the case should have been tried. The first paragraph of the charge points to the bias of the learned judge; it is as follows :

“ The first important question for you to determine is, did the defendant commit adultery with the plaintiff’s wife, or have sexual intercourse with her ? There is no witness in the case who testifies that he or she saw the act committed. It is rare that such proof can be furnished in cases of this kind, on account of the secret character of the offense, and therefore the law allows it to be established by proof of facts and circumstances from which the intercourse may be inferred, and it is by the latter kind of evidence that the plaintiff has endeavored to prove the fact of the adultery of the defendant with his wife. He has introduced testimony of witnesses tending to prove the existence of facts and circumstances from which you are asked to infer the guilt of the defendant. In order to establish his guilt in this way, you must be satisfied by a preponderance of the evidence that these facts and circumstances must be such as to satisfy a reasonable and just man, beyond a reasonable doubt, that the adultery was committed, and you are, therefore, to weigh all the evidence in the case carefully and scrutinize it with that degree of caution, which the importance of the case demands.”

This contains two very grave misstatements, one of law and one of fact. No such rule of evidence applies in an action for damages; the simple preponderance of evidence affirms or negatives plaintiff’s averments, not such as will satisfy a reasonable and just man beyond reasonable doubt. Then the statement, that plaintiff sought to sustain his side of the issue only by inference from circumstances was a clear mistake. The wife testified positively to repeated acts of adultery running through years, giving every circumstance with surroundings of time and place. After the jury had been out some time the learned judge recalled them and sought to correct the error in a Jew brief words, by stating the correct rule of law, and also correcting the declaration that plaintiff’s case rested on circumstances ; but this could not, in all probability have cured the error, for the whole charge was based on the theory, that nothing but circumstantial evidence had been adduced by plaintiff ; if, as there was, full, direct and positive evidence of the main fact, then the whole charge was contradicted and went for nothing, so far as aiding the jury in their deliberation. To illustrate our meaning take this excerpt from the general charge:

“ Then, again, I call your attention to the testimony of the witnesses, as to what occurred in Philadelphia at that hotel. Did the defendant plan and plot the trip that they might go there for the purpose of mutual gratification and enjoyment of each other ? The mere fact that they went to the hotel and that the defendant registered his own name and that of this plaintiff’s wife would not of itself prove that there was any guilty conduct on their part. If it is true, as alleged, that-this plaintiff and his wife asked that they go together to Philadelphia, then there is no significance in the fact that they stopped there, so far as I can judge and their names were properly registered. If they had registered under assumed names, and had represented themselves as other persons than what they really were, it would have been strong evidence that there was a guilty intent. Again, if it is true, and you should so find, that this was not a reputable house, the evidence is for you to say whether it is or not, is there any evidence that the defendant knew that it was a disreputable house? If he stopped at a place of that kind and did not know it, that would be no evidence to convict him.”

So far as this testimony mentioned, tended to prove guilt it was wholly circumstantial, and might or might not warrant the inference claimed by plaintiff; but it wholly omits the wife’s positive testimony, that the trip to Philadelphia was planned by them for purpose of illicit intercourse; that the husband was falsely told she merely desired to transact some business with reference to her father’s estate; that when she arrived she would lodge with a lady friend, an old acquaintance, and merely desired Pettit as an escort on her journey; that she transacted no business whatever and did not see her friend. And let it be borne in mind, all these facts were unquestionably proven. The first instruction in all probability, would influence the jury to disregard the Philadelphia trip as of no consequence, yet her positive testimony with the undoubted corroboration clearly established guilt. No mere statement by the judge after the jury had deliberated, that he had committed an inadverteut error in assuming throughout his charge, that plaintiff’s case rested ■ on circumstantial evidence, could bring back to their minds the weight of the fact resting on both circumstantial and positive evidence.

What we have noted are instances of mistaken and partial instructions running all through the charge. Practically, the fact of adultery was established by the overwhelming weight of the evidence; the conduct of defendant is reconcilable with no other reasonable conclusion, even putting out of view the positive testimony of the wife.

His testimony admits nearly every significant fact alleged, except only the act of sexual intercourse; he was less than a man if under the admitted facts he was not guilty of this too. In substance, his statement would perhaps induce a conviction that he was no more guilty than she. But this does not help him even if it be true; it can only mitigate damages; it is but the old cowardly excuse set up by the first man, “ The woman gave me of the tree and I did eat.” • It did not save from the penalty the first defendant and cannot under the law save this one. The extent of the penalty alone is for the jury.

There are twenty-three assignments of error. The first to thé eleventh inclusive alleging inadequacy of charge and partiality of defendants are sustained, the others have no such merit as require particular notice.

The judgment is reversed and v. f. d. n. awarded.