Burdick v. Freeman

• Decision Date: 03 June 1890
• Parties: BURDICK v. FREEMAN.
• Court: New York Court of Appeals Court of Appeals

120 N.Y. 420

24 N.E. 949

BURDICK

v.FREEMAN.

Court of Appeals of New York, Second Division.

June 3, 1890.

Appeal from supreme court, general term, fifth department.

Action by Chester A. Burdick against Sylvanus D. Freeman for criminal conversation. There was a verdict in plaintiff's favor, and from a judgment affirming the judgment entered thereon defendant appeals. Code Civil Proc. N. Y. § 3343, laying down rules for the construction of words and phrases, provides (subdivision 9) that the term ‘personal injuries' includes, inter alia, criminal conversation.

Charles B. Wheeler, for appellant.

Tracy C. Becker, for respondent.

FOLLETT, C. J.

This action, begun February 19, 1885, is for criminal conversation; and the defendant's liability depended upon the determination of a single issue of fact, namely, did he seduce the plaintiff's wife, entice her from home, and harbor her? In November, 1884, the wife left the plaintiff, since which they have lived apart. The defendant denied that he induced the separation, or advised her to live apart from her husband; but admitted that some time after the separation he began to assist her to maintain herself, and had continued the assistance down to the trial. The plaintiff sought to prove that the defendant and his wife had adulterous intercourse on several occasions, and gave evidence of frequent and intimate association, and of opportunities for adultery on many occasions. The defendant requested the court to instruct the jury that the evidence was insufficient to justify a finding that the defendant and the plaintiff's wife committed adultery on any one of the seven specified occasions. The court refused so to charge, and, in effect, instructed the jury that, if any one of the occasions stood apart by itself, the instruction might be proper; but that in determining the issue they were to consider all of the evidence, and take into account all of the occasions, and if they found that the defendant had seduced the plaintiff's wife, and alienated her affections, he was liable. The issue upon which the liability of the defendant depended was not whether any one of several alleged acts of adultery had been committed; and it was not error for the court to refuse to instruct the jury that this or that alleged act, taken by itself, was not established. When the evidence is, as a matter of law, insufficient to authorize a finding that the fact in issue is or is not established, it is the duty of the court to so instruct the jury; but it is not ordinarily its duty to instruct the jury whether the evidence is or is not sufficient to authorize them to find that a mere evidentiary fact, asserted by one party, but denied by the other, exists or does not exist.

The plaintiff's counsel requested the court to charge that, ‘although her [the wife's] affections might have been alienated in the first instance, yet if she left the plaintiff, and the defendant harbored her, maintained and enticed her, contrary to the wish of the plaintiff, the plaintiff can recover. The Court. I did charge that almost in the same language. Plaintiff's Counsel. I think your charge was that the affections must have been alienated by the defendant. The Court. I say this: That if the woman, without the intentional aid of the defendant,-if this woman's affections were alienated from her husband, so that she had not any affection for him, and that she was determined to and did leave her husband because she hated him, or because he had abused her,-then the defendant is not liable for alienating her affections, because he did not alienate them, if that was so. But if her husband maltreated her, and the doctor interfered, and he helped get her away from her husband, then he is liable. He would not be liable-that is, the jury would not be likely to give the plaintiff as much damages in such a case-if he, by his own misconduct, had almost thrust...