Fleming v. Fisk, 6668.

• Decision Date: 14 December 1936
• Docket Number: No. 6668.,6668.
• Citation: 87 F.2d 747,66 App. DC 350
• Parties: FLEMING v. FISK.
• Court: U.S. Court of Appeals — District of Columbia Circuit

66 App. DC 350, 87 F.2d 747 (1936)

FLEMING v. FISK.

No. 6668.

United States Court of Appeals for the District of Columbia.

Decided December 14, 1936.

Harry H. Bettelman, of Washington, D. C., for appellant.

Milford Schwartz and Achilles Catsonis, both of Washington, D. C., for appellee.

Before MARTIN, C. J., and ROBB, VAN ORSDEL, GRONER, and STEPHENS, JJ.

STEPHENS, Associate Justice.

This is an action brought by Mrs. Fleming, appellant here and plaintiff below, for the alleged alienation of the affections and deprivation of the consortium of her husband. Issue was joined by the appellee, Marion Fisk, defendant below. There was a trial to a jury and at the close of the whole case the trial judge granted a motion for a directed verdict in favor of the defendant. This appeal was then taken. The sole question is whether there was sufficient evidence to take the case to the jury.

The procedural rule involved is not in dispute. On motion for a directed verdict the evidence must be construed most favorably to the plaintiff and the plaintiff is entitled to the full effect of every legitimate inference. If, so viewing a plaintiff's case, there is lacking evidence upon which jurymen can properly find a verdict — there must be more than a mere scintilla — the court must intervene. But if upon the evidence reasonable men might differ the case is for the jury, not the court. See Schwartzman v. Lloyd, 65 App. D.C. 216, 218, 82 F.(2d) 822, 824. The general rule of substantive law applicable to this type of case is also settled. Each party to a marriage has a legal right to the affection and consortium of the other. Deprivation of the same, intentionally caused by a third party, is legally actionable. Dodge v. Rush, 28 App.D.C. 149, 8 Ann. Cas. 671, and Richards v. Lorleberg, 65 App.D.C. 57, 79 F.(2d) 413.

We have carefully examined the record and think it sufficient to state the evidence in general and illustrative terms.

Mr. and Mrs. Fleming, married in 1916, lived for a time in 1921 with the defendant and her family. From 1921 to 1923 there was an acquaintanceship and association between Mr. Fleming and Miss Fisk of an innocent and casual character. For example, while the two families were living together and perhaps for a time thereafter, Mr. Fleming, accompanied by Miss Fisk's father and neighbors, drove Miss Fisk to work in Washington, D. C., in which city he also was employed. In 1924 Miss Fisk, who was then attending college in Ohio, in a letter to Mr. Fleming stated that she was "lonesome for and missed" him and urged him "to send her flowers and candy since other girls at college were receiving gifts from their boy friends," and she asserted that "unless she heard from him she would have to return because she could not bear to be away from him without hearing from him." Mr. Fleming showed this letter to Mrs. Fleming and they conferred as to the proper thing for him to do about it. He answered it in the presence of Mrs. Fleming, telling Miss Fisk that he was happy without her and wished to be let alone and advising her to interest herself in other men. From 1924 to 1932, a period of about eight years, there was a substantial break in contact between Miss Fisk and Mr. Fleming. The slight association shown during this period does not indicate any effectual alienation of...