Davenport v. Holden

• Decision Date: 15 November 1920
• Parties: DAVENPORT v. HOLDEN.
• Court: New Jersey Supreme Court

112 A. 418

DAVENPORT

v. HOLDEN.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1920.

(Syllabus by the Court.)

Black, J., dissenting.

Appeal from Supreme Court.

Action by Oliver M. Davenport against Charles F. Holden. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles A. Cogan, of Camden, for appellant.

David R. Rose and Frank Voigt, both of Camden, for appellee.

KATZENBACH, J. This action was instituted for the recovery of damages for the alienation by the defendant of the affection of the plaintiff's wife. In 1913, Oliver M. Davenport, the plaintiff, married Alva Quint, whose parents resided at Collingswood, N. J. The defendant, Charles F. Holden, who was married, but separated from his wife, became acquainted with Mr. and Mrs. Davenport in March, 1918. In June, 1918, the defendant began to call at the home of Mr. and Mrs. Quint, the parents of Mrs. Davenport, and with whom Mr. and Mrs. Davenport were living. The defendant owned an automobile, which he at tunes placed at the disposal of the Davenports and Quints. He soon became a frequent and welcome visitor at the home. In the latter part of June the defendant took Mrs. Davenport in his motor to Ocean City to the summer home of her parents, and during the summer came almost every week-end to the Quint cottage and remained over Sunday. Davenport was employed at Atlantic City, and upon, each Saturday evening the defendant would drive Mrs. Davenport to Atlantic City and get Davenport and bring him to Ocean City for Sunday. On Saturday, August 17th, Davenport gave up his position at Atlantic City. When his wife and the defendant came over, as usual, from Ocean City for him on that evening, a quarrel between Davenport and his wife began, which Mrs. Davenport says arose because of a grouch which her husband displayed and of which she complained. On the following Sunday, August 18th, Mrs. Davenport demanded that Davenport get rid of his grouch or get out of the house. Davenport resolved to do the latter, and left the Quint cottage on that day and did not return. The attentions of Holden, the defendant, to Mrs. Davenport were not assigned by Davenport as one of the causes of the quarrel,' although Mrs. Davenport admits that her husband had spoken to her of thinking more of other people than of him, and that she had interpreted this as a reference to Holden. After the Davenports separated, Holden continued his visits to the Quint cottage at Ocean City and later to the home in Collingswood. He would stay at tunes until early in the morning and on occasions all night. He was frequently seen late at night motoring with Mrs. Davenport. The case instituted in the Supreme Court was tried before the common pleas judge of Camden county. The jury returned a verdict in favor of the plaintiff. The defendant has appealed to this court.

The first ground of appeal is the refusal of the trial court to nonsuit the plaintiff on the opening made by the plaintiff's counsel. The counsel for the plaintiff opened the ease, outlining fully what it was proposed to prove, and stating in conclusion that they would show that Holden "produced a steady course of effort to take away the affection of Mrs. Davenport for her husband, and that he succeeded," etc. The motion to nonsuit on this opening was based upon the ground that counsel for the plaintiff had not disclosed any act on the part of the defendant, showing that the defendant had willfully, maliciously, and intentionally alienated the affection of Mrs. Davenport. Whether the alienation was willful, malicious, and intentional or not was, under the facts to be proven, a question for the jury. Where a motion to nonsuit is based on an opening statement, the plaintiff is entitled to the benefit of all facts proposed to be proved, whether contained in the opening statement or pleadings, and the reviewing court must regard them as proved. D'Aloia v. Union Italiana of Vineland, 84 N. J. Law, 683, 87 Atl. 472.

In the present case there were facts stated in the pleadings and in the opening address of counsel sufficient to sustain the cause of action, if proved. The ruling of the trial court refusing to grant a nonsuit upon the opening was, in our opinion, correct.

The second and third grounds of appeal will be considered together, as they involve the same question, namely, whether the trial court erred in refusing to strike out the evidence of Walter Davenport and Ada V. Davenport as to occurrences subsequent to the separation of the plaintiff and his wife. Walter Davenport and Ada V. Davenport were the parents of the plaintiff. They lived in Collingswood on the same street with Mr. and Mrs. Quint, parents of their son's wife, and on the same side of the street, one house separating the Davenport home from the Quint home. Commencing in October, 1918, Walter Davenport kept a record of the visits of Holden to the Quint home, showing that Holden's visits were frequent and lengthy, and that on some occasions he remained all night, and left the following morning in his automobile, which he had parked outside of the Quint house during the night. This evidence was corroborated by Ada V. Davenport. The defendant...