Dalton v. Martin

• Citation: 102 W.Va. 595
• Decision Date: 23 November 1926
• Docket Number: (No. 5637)
• Parties: Amelia M. Dalton v. Annie M. Martin
• Court: Supreme Court of West Virginia

102 W.Va. 595

Amelia M. Dalton

v.Annie M. Martin

(No. 5637)

Supreme Court of Appeals of West Virginia.

Submitted October 19, 1926.

Decided November 23, 1926.

1. Alienation Ordinarily, In Actions by Wife Against Third Party for Alienating Husband's Affections, Declaration of Husband Whose Affections Are Alleged to Have Been Alienated by Defendant, Made to Plaintiff, or a Third Person, Concerning Words or Acts of Defendant and Tending to Prove Charge Made Against Defendant Are Hearsay and Inadmissible Against Defendant.

Ordinarily, in actions by a wife against a third party for alienating her husband's affections, the declarations of the husband whose affections are alleged to have been alienated by the defendant, made to the plaintiff, or a third person, concerning the words or acts of the defendant and tending to prove the charge made against the defendant, are purely hearsay and inadmissible against the defendant.

2 Illegal Evidence Where Illegal Evidence is Admitted Against Objection of Party, It Will be Cause for Setting Aside Verdict, Unless it Clearly Appears That the Objecting Party Was Not Prejudiced Thereby. Where illegal evidence is admitted against the objection of a party, it will be cause for setting aside the verdict, unless it clearly appears that the objecting party was not prejudiced thereby.

3. Instructions Instruction to Jury Directing Them in Case Finding for Flaintiff That Damages be Assessed at Such Sum as Jury May Believe Plaintiff is Entitled to is Improper Because it Did Not Require Such Finding to be Made Upon Evidence. However, Harm From Giving Such Instruction Will Not be Presumed and Reversal Based Thereon When it Does Not Appear That Jury Was Misled Thereby.

An instruction to the jury directing them in case of finding for the plaintiff that the damages be assessed at such sum as the jury may believe that the plaintiff is entitled to is improper because it did not require such finding to be made upon the evidence. However, harm from the giving of such instruction will not be presumed and reversal based thereon when it does not appear that the jury was misled thereby, (p. 599.)

Error to Circuit Court, Mercer County. Action of Trespass by Amelia M. Dalton against Annie M. Martin. Judgment for plaintiff, defendant brings error.

Reversed.

French, Easley & Easley, for defendant in error. Hugh G. Woods, A. A. Lilly, and Jno. R. Pendleton, for plaintiff in error.

Woods, Judge:

This is an action of trespass on the case, instituted in the circuit court of Mercer County, by Amelia M. Dalton against Annie M. Martin, for enticing, persuading and procuring the husband of the plaintiff to leave, desert and abandon her. The defendant is a widow woman, fifty-three years of age, residing in Princeton, West Virginia, and engaged there in conducting a rooming and boarding house. The plaintiff is a resident of Bedford county, Virginia, Her husband is a machinist, 38 years old, and since their marriage in 1909 has worked away from his home most of the time. In March, 1924, he came to Princeton, West Virginia, to work at his trade for the Virginian Railway Company, and in the following April went to live at the boarding and rooming house of the defendant. The plaintiff contends that while her husband was so boarding with the defendant that he and defendant began to pay undue attentions to each other, and became infatuated with each other, and that her husband lost his affections for plaintiff, and became estranged from her, resulting in her abandonment by him. No charge of criminal conversation is made, and no proof thereof is contained in the evidence. The defendant contends that there were no improper relations or conduct between herself and plaintiff's husband, that nothing beyond ordinary friendship, existed between them, and that there was no interference in the marital relations of plaintiff and her husband by the defendant.

The errors alleged go to (1) the introduction of evidence, (2) the giving and refusal of instructions, (3) the insufficiency of the evidence to sustain the verdict, (4) its excessiveness, and (5) that an unsworn witness testified for the plaintiff.

Objection was made to the introduction of one of Dalton's letters to Mrs. Bagley. his foster mother, as a part of her testimony. In it, Dalton, after apologizing for delay in writing, etc., states that her letters make him dizzy, one comes "gee" then one comes "haw", that he has experienced sixteen years of married difficulties from which he intends to "get loose gracefully", if he can, and if not, that he will take his "little lady", designated as "N", and go to parts unknown. This letter was admissible only for the purpose of showing the relation existing between the plaintiff and her husband. The objection being general, the letter was properly introduced. This Court has held that a general objection to evidence, admissible for one purpose but improper for another, should be overruled. Rogers v. Engineering Co., 101 W. Va. 1; Huff v. Insurance Co., 94 W. Va. 663; Billups v. Woolridge, 80 W. Va. 13; State v. Calhoun, 67 W. Va. 666; Lynchburg Cotton Mills v. Rives, 112 Va. 137. But, the court, following the admission of this letter in evidence, over the objection of the defendant, permitted Mrs. Bagley to testify in regard thereto, as follows: "Q. Do you know who N is, that is referred to there! A. Yes. Q. Who? A. He called Mrs. Martin 'Nacomi', a Spanish name, he explained to me, which meant a handful of flowers, or an armful of flowers, I can't remember which." The court erred in admitting this testimony. The letter on its face did not refer to the defendant by name. The instruction given by the court to the effect that the letters were only to be considered by the jury upon the questions of the relation existing between plaintiff and her husband, did not cure the error here. The substantive proof as to the identity of "N" was an introduction of matter in evidence not contained in the letter evidence highly prejudicial to the defendant, in view of the fact that the remaining testimony upon the general Issue leaves it doubtful whether the affirmative of that issue is sustained. In line with this evidence the foster mother was permitted to state a conversation with the husband of the plaintiff to the effect: "I talked to him on Saturday night, all night, and I accused him with his relationship with her * * * and he first of all denied, it, * * * He said 'Well, what of It if it is true! I am the first man who has been with Mrs....