Adams v. Main

• Decision Date: 05 January 1892
• Citation: 3 Ind.App. 232,29 N.E. 792
• Parties: ADAMS v. MAIN.
• Court: Indiana Appellate Court

3 Ind.App. 232

29 N.E. 792

ADAMS

v.MAIN.

Appellate Court of Indiana.

Jan. 5, 1892.

Appeal from circuit court, Henry county; E. H. BUNDY, Judge.

Action by Henry H. Main against Henry J. Adams for debauching plaintiff's wife, and alienating her affections. Judgment for plaintiff. Defendant appeals. Affirmed.M. P. Turner and M. E. Forkner, for appellant. J. M. Morris and Chas. S. Healey, for appellee.

REINHARD, J.

The appellee sued the appellant for debauching his wife. Originally the complaint was in one paragraph, and in it there was a charge of adultery. After the issues had been closed, and the trial entered upon, the appellee, by leave of court, filed a second paragraph of complaint, from which the charge of carnal knowledge was omitted, and which declared simply upon an alienation by the appellant of the affections of the appellee's wife. No demurrer was filed to either paragraph. Issues were joined; the cause was tried by a jury; and there was a verdict in favor of the appellee on the second or additional paragraph of the complaint, there being no express finding on the first.

The appellant made unsuccessful motions for a venire de novo and for a new trial, and the ruling of the court upon these motions is reserved by proper exceptions, as also by the assignment of errors. The appellant requested the court to instruct the jury that the action could not be maintained without proof of adultery. The instruction was refused. The record shows, and the appellant concedes, that the request was not made until after the commencement of the argument; and the question of whether or not there was error in refusing to give the instruction is therefore not properly presented. The point is made, however, upon the sufficiency of the evidence to sustain the verdict, and in the discussion of this question the appellant's counsel urge upon us with much earnestness the consideration that sexual connection must be established before there could be any recovery. As the finding was expressly upon the second paragraph of the complaint, in which the charge is confined to that of alienating the affections of the wife from her husband, and as there was neither demurrer nor motion in arrest of judgment, and there is no assignment of error that the complaint fails to state facts sufficient to constitute a cause of action, we do not see how the appellant is in any position to present the question he asks us to decide. The point has been decided, however, against the appellant, in Higham v. Vanosdol, 101 Ind. 160.

The appellant next insists that the gist of the second paragraph of the complaint is for the loss of services, and, as there was no proof of any actual pecuniary loss, the evidence did not sustain the averments in this paragraph. In this view we cannot concur. It is perhaps true that the theory of such an action was originally the loss of services, for it was presumed that by the seduction or alienation the wife's services were rendered less valuable. But, whatever may have been the principle, originally, upon which this class of actions was maintained, it is certain that the weight of modern authority bases the action on the loss of the consortium,- that is, the society, companionship, conjugal affections, fellowship, and assistance. The suit is not regarded in the nature of an action by a master for the loss of the services of his servant, and it is not necessary that there should be any pecuniary loss whatever. Rinehart v. Bills, 82 Mo. 534;Bigaouette v. Paulet, 134 Mass. 123;Sikes v. Tippins, (Ga.) 11 S. E. Rep. 662;Heermance v. James, 47 Barb. 120; Jones v. Railroad Co., 40 Hun, 351; Cooley, Torts, (2d Ed.) 261; Bigelow, Cas. Torts, 328, 333, 340. It is true that the loss of services may still constitute one of the elements of damages in the case, for the alienation of the wife's affections may involve the loss of such services, but not necessarily so. Mr. Bishop states the law upon this subject as follows: “One who, by improper means, alienates a wife's affections from her husband, though she neither leave him nor yield her person to the seducer, [the italics are ours,] injures the husband in that to which he is entitled, brings unhappiness to the domestic hearth, renders her mere services less efficient and valuable, and inflicts on him a damage in the nature of slander; so that for the redress of his wrong an action is maintainable.” 1 Bish. Mar. & Div. (New Ed.) § 1361. As an evidence that, whatever may have been the rule formerly, the trend of authority now is to treat the consortium as the basis of the action, it may be said that in many jurisdictions of this country, including our own, it is now held that the wife may maintain an action for the alienation of the affections of her husband, and that this may be done even in some jurisdictions where the common law still prevails. 1 Bish. Mar. & Div. (New Ed.) § 1357 et seq.; Haynes v. Nowlin, (Ind. Sup.) 29 N. E. Rep. 389, Postlewaite v. Postlewaite, 1 Ind. App. 473, 28 N. E. Rep. 99. The reasoning in these cases is that, inasmuch as the husband has the right to sue for the loss of the consortium of the wife, there can be no intelligent reason why she should not possess the right to sue for the loss of the society, companionship, affections, and protection of the husband, which the law has vouchsafed to her. Surely the analogy would not hold good if the right of action of the husband for the alienation of the affections of his wife were based solely upon the loss of her services, for under the common law the wife, who was considered the inferior being, had no property rights in the services of the husband. 3 Bl. Comm. 143. But, even if we were to concede that the husband's right to maintain this action is based upon the loss of services of the wife, as the appellant contends, it does not necessarily follow, by any means, that there must have been actual separation of the parties, for, as we have seen from the quotation from Bishop, one of the very consequences of the loss of the affections is that it lessens the value and efficiency of her services, even if she continues to perform them. It seems plain, therefore, that, if it can be shown that the defendant did that which impaired the value of such services, he would still be liable, even though he did not deprive the husband of them entirely. The position of the appellant on this point is therefore not maintainable, even from his own premises. The facts proved amply sustain the averments of this paragraph.

Error is claimed also in the giving of two instructions. The first of these is as follows: “(5) This being an action by a husband for the seduction of his wife, the wife is excluded from testifying, and is not a competent witness; and no inference is to be drawn for or against either party to this suit from the fact that the plaintiff's wife has not testified.” Section 501 of the statutes provides that the husband shall be a competent witness in a suit for the seduction of his wife, but she shall not be competent. The contention of counsel for appellant that the second paragraph of the complaint, upon which the verdict was predicated, does not make a case of seduction, cannot prevail. The term “seduction” does not necessarily imply carnal knowledge, although it is generally used in that connection. It was doubtless the intention of the framers of this section to apply that term to all cases of this class, whether there is a charge of adultery or not, and to render the wife incompetent as a witness in such cases. That ...