Caplan v. Caplan

• Decision Date: 01 May 1928
• Citation: 142 A. 121
• Parties: CAPLAN v. CAPLAN et al.
• Court: New Hampshire Supreme Court

142 A. 121

CAPLAN

v. CAPLAN et al.

Supreme Court of New Hampshire. Grafton.

May 1, 1928.

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Transferred from Superior Court, Grafton County; Burque, Judge.

Action by Dora Caplan against Lena Cap-Ian and Louis Caplan for alienation of her husband's affections. Trial by jury, and verdict for the plaintiff. The defendant Louis Caplan excepted to the denial of his motion for a directed verdict, and both defendants excepted to the admission and exclusion of evidence. Judgment for defendant Louis Caplan, and new trial for defendant Lena Caplan.

Murchie & Murchie, of Concord, Fred A. Jones, of Lebanon, and Alexander Murchie, of Concord, for plaintiff.

Raymond Trainor, of White River Junction, Vt., and Demond, Woodworth, Sulloway & Rogers, and Jonathan Piper, all of Concord, for defendants.

ALLEN, J. The motion for a directed verdict should have been granted.

For convenience, the plaintiff's husband is referred to as David, his father as Louis, and his mother as Lena. David had always lived with his parents, and, when he and the plaintiff were married, she joined the household. The marriage proved unsuccessful, and there was a separation after a few months, when the plaintiff returned to her former home. In a general way, the plaintiff claimed that the defendants sought to make a domestic servant of her, while the defendants took the position that she married for mercenary reasons. The home with the defendants made a situation materially contributing to the circumstances leading to the separation. The sufficiency of the evidence to justify the verdict against Lena is conceded. The evidence tended to show a course of conduct on her part inspired by ill will and hostility towards the plaintiff, accomplishing its purposes by a dominating influence over David, and consisting mainly of advice and counsel to him not to have marital relations with his wife and of criticism to him about her. Lena finally, in David's presence, and without any protest from him, ordered the plaintiff to leave the defendants' home.

Louis knew what Lena's conduct was at the time of it, and acquiesced in it to the extent of approval. It is claimed that he encouraged and furthered it, and that there was conduct of his own apart from Lena's from which it might be inferred that he joined in the alienation, not only in responsibility for Lena's conduct, but in taking separate and distinct action of his own.

It is also argued that a husband is liable for his wife's torts, at least when they are committed in his presence, and not objected to by him. This contention is unavailing. "Every married woman * * * may * * * sue and be sued, * * * for any wrong by her done, as if she were unmarried." P. L. c. 288, § 2, "* * * since he [the husband] has no more legal power of physical control over her than she has over him, no more reason seems to remain for holding him liable for her torts than for holding her liable for his." Harris v. Webster, 58 N. H. 481, 484. "Husband and wife now stand upon an equality of right in respect to property, torts, and contracts," subject only to express statutory exceptions. Seaver v. Adams, 66 N. H. 142, 143, 19 A. 776, 49 Am. St. Rep. 597. The husband's lack of right to exercise physical control over his wife does away with any presumption of coercion by reason of the martial relationship, and the fact of marriage is not enough to justify an inference of participation or furtherance from acquiescence or approval. "It is not enough that he should know of and acquiesce in the tort, or even approve of it; but he must have had some active participation in bringing it about, either by some act which he did himself, or something which his wife did under his direction." Claxton v. Pool (Mo. Sup.) 197 S. W. 349, L. R. A. 1918A, 512. See, also, Multer v. Knibbs, 193 Mass. 556, 79 N. E. 762, 9 L. R. A. (N. S.) 322, 9 Ann. Cas. 958.

In her own testimony, the plaintiff makes no charges against Louis of conduct indicating participation in the alienation, and its burden is largely confined to ill treatment by Lena and David. In argument, however, a number of incidents to which she testified are pointed out as evidence of participation. Giving them attention, shortly before the marriage Louis "took over" David's autobus business, and it is urged that the transaction might be found promotive to increase the defendants' domination over David and to facilitate their later efforts, alleged as to Louis, to bring about the separation. What was meant by taking over the business is not at all clear. Granting that David had owned the business and the property employed in it, he continued to manage it after Louis thus took it over. At the trial, the reason for the change was not sought to be disclosed, and It may not be Inferred that it was on account of the relations between the plaintiff and David, or was made as an incident in the course of conduct constituting the alienation or in furtherance of the result which the plaintiff seeks to attach to it. Until after its consummation, the defendants actively favored the marriage, and it is too contrary to reason to infer from the later events disclosed that before the marriage took place they were already planning for its possible disruption.

Prior to the marriage, the plaintiff was promised a separate home for herself and David by him and the defendants. The promise was not fulfilled. She did not require it as a condition of the marriage, and when upon the marriage David took her to live at the defendants' home she made no complaint about it. It is hardly to be believed that, if she expected until the marriage to be installed in a separate home, its character and furnishings would not have been discussed between her and David, and that she would have said nothing about her feelings on learning that she was to live with the defendants. And the only fair inference is that the promise was not of such a home at the outset, but referred to a reasonable time in the future. As the plaintiff and David were separated a few months after the marriage, the nonfulfillment of the promise was no interference with their relations. When the promise was made, the defendants favored the marriage, and no purpose at that time to disregard the promise can be inferred. That it was not carried out might be a consequence, but not a cause, of the separation and the happenings which led to it.

Point is also made of Louis' failure to notify David of a telephone call for him from the plaintiff while she was away from home on a visit, and while he was out. The plaintiff found an unfavorable change in David's attitude towards her on her return. Without assigning reasons for the insufficiency of the evidence to show participation, it was of hearsay character. The plaintiff testified that David found fault because she did not telephone to him, and it was only his statement to her that he had not been notified by Louis of her call that appeared in evidence. While the evidence of the talk between them was competent to show their relations and attitude, it was not competent to show the truth of facts asserted by him in the talk, and it is assumed the jury were instructed to limit the use of the evidence to its proper purposes. O'Dowd v. Heller, 82 N. H. 387, 389, 134 A. 344.

On one occasion the plaintiff complained to Louis of the way Lena treated her, and he replied in effect that what Lena and David did met with no objection from him. If his reply may be construed as going further and amounting to an expression of approval of their conduct, it is no evidence that he "aided and abetted" them in it. He owed no duty to the plaintiff to object to what they did, and it was his right to approve of it if his remark signified that he held the plaintiff in unfavorable regard, it did not signify conduct in pursuance of it of a wrongful character, and there is no liability for a state of mind.

When the plaintiff was told by Lena to leave the defendants' home, she went to the house of a neighbor, and he testified that she told him "they" had ordered her to go. Her own version of what happened shows that the reference did not include Louis. So far as appears, he was not even a witness of the incident. Soon afterwards the neighbor went to the defendants' home to inquire about the trouble. They and David were all present. Lena did most of the talking. Only one statement appears to have been made by Louis, and the neighbor did not recall what it was. The fact that Louis objected neither to what his wife had done in ordering the plaintiff out nor to the criticisms of the plaintiff she made in the talk has no probative value in showing that he took part in the incident.

Soon after the separation, a man interested in the plaintiff sought to have the defendants provide a separate home for her and David. They refused, and the suit was brought. Thereafter unsuccessful efforts were made for a reconciliation. After the suit was brought, Louis at all times took his wife's side, and stood up for her passively and actively. He joined in her criticisms of the plaintiff and in resistance to the demands made upon them. But the record shows no acknowledgment of sharing in the responsibility for the separation. If the criticisms of the plaintiff were unfounded, there is nothing to show that he did not believe his wife's assertions of them. No evidence of his purpose to injure the plaintiff or of bad faith towards her is found.

Until the separation, if he was not a neutral spectator, his approval of his wife's and son's conduct fell short of participation or even encouragement, so far as the evidence discloses. His wife called on him for no assistance, and received no urging. He did no more than to let matters take their course, with acquiescence in her conduct, and some expressed approval. Such approval was of what had been done, and not of what she proposed to do, so far as it related to...