Amellin v. Leone

• Decision Date: 08 March 1932
• Citation: 159 A. 293,114 Conn. 478
• Parties: AMELLIN v. LEONE.
• Court: Connecticut Supreme Court

159 A. 293

114 Conn. 478

AMELLIN v. LEONE.

Supreme Court of Errors of Connecticut.

March 8, 1932

Appeal from Superior Court, New Haven County; Allyn L. Brown, Judge.

Action by Frank Amellin against Joseph Leone to recover damages for alienating the affection of the plaintiff's wife, brought to the superior court and tried to the jury. Verdict and judgment for the plaintiff, motion to set aside the verdict denied, and the defendant appealed.

No error.

Joseph Weiner, of New Haven, for appellant.

Julius Maretz, of New Haven, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HAINES, J.

An assignment of error in the trial court's refusal to set aside the verdict specifies that the verdict was contrary to the law and the evidence and was excessive, and that it was actuated by bias and prejudice on the part of the jury. The only other assignments relate to various portions of the charge. All the evidence taken at the trial, more than three hundred and fifty pages, has been certified for our inspection, and it has been read with care. The flatly contradicted character of the testimony on the most important features of the case forces the conviction there was much deliberate falsehood on the part of some of the witnesses. Upon such a presentation it was the province of the jury to determine where the truth lay. The concurrence of twelve men composing the jury especially when their conclusion is supported by the presiding judge, all of whom have had the opportunity of seeing and hearing the witnesses comes to this court with weighty considerations in its favor and should and will not be disturbed unless it clearly appears that the action of the jury was unreasonable or motivated by improper considerations or that the presiding judge has exceeded his discretionary control over the verdict. Monczport v. Csongradi, 102 Conn. 448, 454, 129 A. 41; Canfield v. Sheketoff, 104 Conn. 28, 30, 132 A. 401; Schulte, Inc., v. Hewitt Grocery Co., 101 Conn. 750, 751, 125 A. 365; Skaling v. Sheedy, 101 Conn. 545, 548, 126 A. 721, 36 A.L.R. 540.

Our study of the record makes it absolutely clear that, if the jury believed the evidence offered by the plaintiff and his witnesses, as it was their province to do, and as they apparently did, their verdict was a reasonable and proper one. Moreover, we are unable to find any indication that they were actuated by an improper motive. The trial court, after two weeks of consideration, refused to interfere with the verdict. It is claimed by the appellant that the verdict of $3,500 is excessive, and, while it does impress us as a large verdict, " injuries such as these are indeed incapable of precise measurement, but, when proven, they do justify substantial damages. In the light of the circumstances which the jury may have found proven, we cannot say, as matter of law, that the sum awarded was excessive." Valentine v. Pollak, 95 Conn. 556, 558, 111 A. 869, 870.

One of the assignments of error is the following portion of the court's charge: " The husband has a right of action, even though no affection existed at the time of the wrongful acts committed. No one has a right to interfere to cut off any chance of its springing up in the future, and so long as the husband keeps his marriage contract, so long he has a right to conjugal society and affection of his wife. Possibly he may regain these if they be lost and this possibility is his valuable right. So that in this case it is not necessary for the plaintiff to support a recovery, to show that there was affection between the plaintiff and his wife and that the defendant completely alienated it. If you find that the plaintiff has proven a partial alienation he is entitled to a recovery; and this is so even if you may find that there had existed no affection between the husband and wife prior to the acts of the defendant complained of *** So too, if the affections of his wife were withdrawn before the acts of the defendant were committed, this is a circumstance to be considered in mitigation of damages."

Though authorities may be found for the proposition that the action will not lie where the wife's affection for her husband bad gone in whole or in part before the acts with which the defendant is charged, the sounder rule and the one more consonant with a sound public policy is that given in substance in the charge complained of. Dey v. Dey, 94 N. J. Law, 342, 110 A. 703; Fratini v. Caslini, 66 Vt. 273, 29 A. 252, 44 Am.St.Rep. 843; Joseph v Naylor, 257 Pa. 561, 101 A. 846. The trial court was at pains to define the scope of the rule, and further stated to the jury that, if there was any misconduct on the part of the husband which was only a subsidiary as distinguished from the controlling cause of the alienation, it would not necessarily and of itself bar the husband's recovery; but, if his own conduct was the controlling cause, he could recover nothing; and that the same would be true if the alienation, however caused, was independent of any intermeddling on the part of the defendant. A defendant will not be exonerated, even though he may be less blameworthy than the plaintiff for loss of the wife's affection. 30 C.J. pp. 1125, 1126, § § 982, 984. And, even though it be shown that the wife has no affection for the husband, the defendant may still be liable if he prevents or...