French v. Deane

• Decision Date: 07 March 1894
• Citation: 36 P. 609,19 Colo. 504
• Parties: FRENCH v. DEANE. [1]
• Court: Colorado Supreme Court

36 P. 609

19 Colo. 504

FRENCH v. DEANE. ^[1]

Supreme Court of Colorado

March 7, 1894

Appeal from district court, Arapahoe county.

Action by Cecil A. Deane against S. Willis French for enticing away his wife. From a judgment for plaintiff of $25,000, defendant appeals. Reversed.

Plaintiff in his complaint, alleges, inter alia, his marriage with Clara R. Deane in the year 1870. 'That said plaintiff has at all times from the date of his said marriage lived in the city of Denver, with his wife, and has provided her with a comfortable home, and at all times his said wife has lived with him at his said home, happily and contentedly, until the occurrence of the matters hereinafter set forth. That said defendant, about the year 1876, became and was acquainted with the said wife of this plaintiff, and shortly afterwards the said defendant commenced to acquire, and did acquire, and since then has had, and now has, an improper influence over the wife of said plaintiff; and the said defendant, by means of said undue influence, did, maliciously, and with the intent to injure the plaintiff, and to deprive him of the comfort, society, and assistance of his said wife, seduce the said wife, and seduce and alienate her affections away from the plaintiff, and to the defendant; and the said defendant further intending to injure this plaintiff, and to deprive him of the comfort, society, and assistance of his wife, did on or about the 1st day of December, A. D. 1889, entice her away from the said plaintiff, against his consent, by means whereof, among other things, his home has been made desolate and ruined. That by reason of the premises the plaintiff has been, and still is, wrongfully deprived by the defendant of the comfort, society, and aid of his said wife, and has suffered great distress in body and mind in consequence thereof, and is damaged in the sum of $100,000. Wherefore the said plaintiff prays judgment against the defendant in the sum of $100,000, and costs of suit.' The answer puts in issue the allegations of the complaint.

Elliott J., dissenting.

O'Donnell & Decker and Benedict & Phelps, for appellant.

Thomas, Bryant & Lee and Wells, Macon & Furman, for appellee.

HAYT, J. (after stating the facts).

Among the fundamental rights of husband and wife is that each has the right to the society and companionship of the other. At common law there were two forms of action that might have been maintained by the husband for offenses against the marital relation,--one for enticing the wife away, and the other for seduction,--and these actions, subject to some modifications by statutes in a number of the states, still exist. Whether the present action be treated as one for enticing the wife away, or for seduction, it is sufficient, in either event, to allege in the complaint the ultimate facts, without a statement of the arts made use of to accomplish the illegal purpose. Brown v. Kingsley, 38 Iowa 220; Hodges v. Bales, 102 Ind. 494, 1 N.E. 692; Rees v. Cupp, 59 Ind. 566.

No objection was made to the complaint by demurrer or motion in the court below. If the defendant desired a separate statement of the causes of action alleged, he should have interposed a motion for that purpose at the first opportunity. At the trial the jury were instructed that the plaintiff might recover without proof of seduction, but that such proof was competent for the consideration of the jury in determining whether or not the affections of the plaintiff's wife had been alienated, and also in aggravation of damages. Counsel for appellant seem to have been in doubt, until the instructions of the court were read, as to the precise charge upon which damages were claimed. Their requests for instructions contain repeated references to the charge of seduction, and specific instructions are asked thereon. The court, in its charge, however, treats the action as one simply for enticing away the plaintiff's wife. Much uncertainty and confusion might have been avoided, had the issues been clearly defined and understood at the outset. Upon a charge of seduction, we do not think that there is room for serious contention for vindictive or punitive damages, as the law stood at the time the seduction took place, if at all. In fact, if such damages may properly be given in this case at all, it is because of the act of 1889.

The question of the measure of damages is by far the most serious question for consideration in this case. Dependent upon and secondary to it are many questions with reference to the admissibility of evidence, such as of the financial standing and ability of the defendant. If recovery in this case must, at best, be limited to a liberal rule of compensatory damages, it will be apparent that the financial ability of the defendant has no right place in the controversy, as it is only where exemplary or punitive damages may be recovered that such evidence is admissible. Prior to the change made by the statute of 1889, no principle was better settled in this state than that punitive or exemplary damages could not be allowed in any civil case. Murphy v. Hobbs, 7 Colo. 541, 5 P. 119; Railway Co. v. Yeager, 11 Colo. 345, 18 P. 211. The Murphy-Hobbs Case is properly regarded as the leading case upon the subject in this state. The opinion was written by Judge Helm. The court, upon a careful review of the authorities, reached a conclusion against the right to award such damages in any civil case where the offense is punishable under the criminal law. The logic and reason of the argument not only served to weave the conclusion into the warp and woof of our law, but to cause the rule to be extended in subsequent cases to the exclusion of punitive damages in all civil actions, of whatsoever nature. In the case of Railway Co. v. Yeager, supra, it is expressly determined that punitive damages should not be allowed in any civil action. The opinion was written by the experienced judge presiding at the trial of the present case in the district court, who was then one of the supreme court commissioners. In the course of the opinion, which was concurred in by this court, the writer says (speaking of the measure of damages): 'The rule of compensation is sufficient to give the injured party all that he is entitled to; and to go beyond that, and usurp the powers of the state in the infliction of punishment, may well be challenged as a 'sin against sound judicial principle;' a sin which cannot be made to stand for the right by an adherence to it.' The same rule has been announced in a number of recent cases. See Publishing Co. v. Miner, 12 Colo. 77, 20 P. 345; Publishing Co. v. Mosman, 15 Colo. 399, 24 P. 1051; Howlett v. Tuttle, 15 Colo. 454, 24 P. 921. This was the state of the law at the time of the convening of the seventh general assembly. Before considering the change made at that session, we pause to say that the law, as theretofore construed by the court of last resort, was protected by the constitutional inhibitions against ex post facto and retrospective laws equally as well as if the decisions had been enacted into statutes. Wade, Retro. Laws, § 177; Lambertson v. Hogan, 2 Pa. St. 22; Lee Co. v. Rogers, 7 Wall. 181; Chicago v. Sheldon, 9 Wall. 50; Kenosha v. Lamson, Id. 477. If exemplary damages are proper in this case, it is because of the following statute passed by the general assembly, and approved by the governor, upon the 19th day of February, 1889. The statute does not contain an emergency clause, and hence did not go into effect until May 20, 1889. It reads as follows: 'Section 1. That in all civil actions in which damages shall be assessed by a jury for a wrong done to the person, or to personal or real property, and the injury complained of shall have been attended by circumstances of fraud, malice or insult, or a wanton and reckless disregard of the injured party's rights and feelings, such jury may, in addition to the actual damages sustained by such party, award him reasonable exemplary damages.' Sess. Laws 1889, p. 64. The substance of this statute is embodied in the charge given at the trial, but, in addition thereto, the jury were instructed: 'In law, a wrongful act, done intentionally, without a legal justification, is done maliciously.' This instruction is erroneous. To justify exemplary damages, there must be some wrong motive accompanying the wrongful act, or a reckless disregard of plaintiff's rights. Even when the wrongful act results in the death of a human being, malice is not necessarily to be implied. Sedg. Dam. § 363; Miller v. Kirby, 74 Ill. 242; Inman v. Ball, 65 Iowa 543, 22 N.W. 666.

The evidence introduced by the plaintiff to support his cause of action shows, among other things: That plaintiff and Mrs Deane were married in the year 1870. That they lived as man and wife until some time in the fall of 1889, when a separation took place. That defendant, French, became acquainted with Mrs. Deane some time in the year 1877. That for 10 years they were more or less intimate. That during this time the defendant frequently took Mrs. Deane out riding, sometimes returning late in the evening. That he frequently called at her residence in the absence of Mr. Deane, and occasionally accompanied her to the theater. One witness testified to seeing Mr. French kiss Mrs. Deane upon one occasion, and that he was seen with her in the sleeping room occupied by Mrs. Deane. That his attentions to her continued without interruption until the fall of 1887. That in the fall of that year the plaintiff and his wife visited St. Louis, upon the occasion of the holding of the annual encampment of the Grand Army of the Republic. That the defendant took the same train, and several times engaged Mrs. Deane in conversation on the train. That he took rooms near...