Hargraves v. Ballou

• Decision Date: 18 January 1926
• Docket Number: No. 6093.,6093.
• Citation: 131 A. 643
• Parties: HARGRAVES v. BALLOU.
• Court: Rhode Island Supreme Court

131 A. 643

HARGRAVES

v. BALLOU.

No. 6093.

Supreme Court of Rhode Island.

Jan. 18, 1926.

[Copyrighted material omitted.]

Exceptions from Superior Court, Providence and Bristol Counties; Antonio A. Capotosto, Judge.

Action of trespass on the case by Raymond S. Hargraves against Charles C. Ballou, Jr. From a verdict for plaintiff and a denial of a motion for new trial, defendant brings exceptions. Exceptions overruled and case remitted to superior court with directions to enter judgment on verdict as reduced by remittitur.

William H. McSoley, of Providence, for plaintiff.

Danial A. Colton and George A. Breaden, both of Providence, for defendant.

BARROWS, J. This is an action of trespass on the case with counts for alienation of affections and criminal conversation. Defendant pleaded the general issue, and plaintiff recovered a verdict for $7,500. Defendant's motion for a new trial on the ground that the verdict was against the evidence and that the damages were excessive was denied, if the plaintiff should remit all of the verdict exceeding $6,000, and pursuant thereto plaintiff filed his remittitur. The case is now before us on defendant's exception (1) to the trial court's rejection of evidence; (2) to the refusal to grant specific charges; and (3) to the refusal to grant defendant's motion for a new trial.

1. Plaintiff's wife, as a witness for defendant, was asked, "What has been his (plaintiff's) conduct so far as sobriety is concerned?" The court ruled out the question as "possibly incriminating" upon the authority of Ross v. Mitchell, 21 R. I. 270, 43 A. 67, interpreting a statute identical with Gen. Laws 1923, c. 342, § 39 (5023). The applicable portion thereof is that neither husband nor wife, with certain exceptions not here important, "shall be permitted to give any testimony tending to incriminate the other." This language covers conduct.

There is doubt apart from the statute whether the question was material. Norton v. Warner, 9 Conn. 172. Its only bearing might have been to show that the loss of affections was due to drunken habits of plaintiff, not defendant's wrongful act, and the wife had previously testified that she had no affection for her husband in March, 1923, prior to the time she admits knowing defendant. Defendant's brief urges that the exclusion of this evidence prevented his offering other evidence or calling the matter to the attention of the jury. This is incorrect, because the wife's mother testified fully about the plaintiff's continual drunkenness. Moreover, the record is silent on any offer of proof by defendant. It merely shows the asking of the question. There had been a prior conference in chambers between court and counsel about the scope of the statute. While the answer might not be incriminating, we have no evidence to show what was said by defendant's counsel, and, in the light of the court's statement and the later testimony of the mother, it is fair to assume that the expected answer was to show continued drunkenness. This would be incriminatory, and justify the court's ruling. If defendant proposed to offer evidence outside the ban of the statute, it was incumbent on him to bring to this court a record showing such offer. In any event, it is doubtful if defendant suffered harm from the ruling, as the same question was asked and answered at some length by the wife's mother. There was no reversible error in this ruling.

2. The charges requested were adequately covered in the general charge or properly refused.

3. In most states alienation of affections is an actionable tort. 30 C. J. 1119. Criminal conversation is a different tort. The former is not a necessary element in the letter. Barlow v. Barnes, 172 Cal. 98, 155 P. 457. The wrong done in alienation of affections is the deprivation of the spouse of the right to the aid, comfort, assistance, and society of the other spouse in family relationships. The wrong done in criminal conversation is the violation of the spouse's right to the exclusive privilege of sexual intercourse. Stark v. Johnson, 43 Colo. 243, 95 P. 930, 16 L. R. A. (N. S.) 674, 127 Am. St. Rep. 114, 15 Ann. Cas. 868; Tinker v. Colwell, 193 U. S. 473, 24 S. Ct. 505, 48 L. Ed. 754. Alienation of affections is not conclusively presumed to have been caused by criminal conversation. Whether such result has followed is a question of fact. Valentine v. Pollak, 95 Conn. 556, 111 A. 869; Merritt v. Cravens, 168 Ky. 157, 181 S. W. 970, L. R. A. 1917F, 935. While criminal conversation is adultery in the aspect of a tort (Turner v. Heavrin, 182 Ky. 65, 206 S. W. 23, 4 A. L. R. 562), it need not be established by direct proof. Disposition, coupled with opportunity, is sufficient, and may warrant the inference. Negus v. Foote, 228 Mass. 375, 117 N. E. 351; Killers v. Taylor, 108 Md. 148, 69 A. 715; Rott v. Goehring, 33 N. D. 413, 157 N. W. 294, L. R. A. 1916E, 1086, Ann. Cas. 1918A, 643; Powell v. Strickland, 163 N. C. 393, 79 S." E. 872, Ann. Cas. 1915B, 709; Saxton v. Barber, 71 Or. 230, 139 P. 334. Enticing away without debauchery entitles a husband to compensatory damages. If criminal conversation be found resulting in alienation of affections, damages are awarded everywhere for the latter wrong as an aggravation of the former, even in Massachusetts, where no action lies for alienation of affections alone. Houghton v. Rice, 174 Mass. 366, 54 N. E. 843, 47 L. R. A. 310, 75 Am. St. Rep. 351; Evans v. O'Connor, 174 Mass. 287, 54 N. E. 557, 75 Am. St. Rep. 316; Gahagan v. Church, 239 Mass. 558, 132 N. E. 357.

Plaintiff's wife was refused a divorce in April, 1924, and admitted testifying falsely in that case about going automobile riding with defendant. She was many times with him in his automobile, sometimes embraced by him, once with him at least until 11 p. m. at a rooming house, and once routed from defendant's own house by the police. The circumstantial evidence warranted a finding that this defendant was guilty of criminal conversation, with knowledge of the fact that his paramour was a married woman, and the evidence supports the view that defendant's conduct, if not completely responsible for the wife's loss of affection, brought about a final and complete alienation. Plaintiff, therefore, was entitled in the present case to compensatory damages for violation of his marriage bed, aggravated by alienation of affections. The compensatory damages in such cases should be substantial. Scheffier v. Robinson, 159 Mo. App. 527, 141 S. W. 485 ($3,000). There is no legal standard by which to assess them. They are the best estimate of 12 men taken from everyday life, whose combined view is supervised by a trained jurist. The award is dependent on many circumstances, and the reluctance of the courts to disturb, as excessive, damages which are incapable of accurate measurement is well established. Praed v. Graham, 24 Q. B. D. 53, says:

"We think that the damages are larger than we ourselves should have given but not so large as that twelve sensible men could not reasonably have given them."

See numerous other cases without legal standards by which to figure damages in Sutherland on Damages (4th Ed.) § 459, p. 1497.

In Rhode Island, punitive damages may be awarded in torts involving malice, wantonness or willfulness. Smith v. Macomber, 28 R. I. 248, 66 A. 570; Hickey v. Booth, 29 R. I. 466, 72 A. 529, 132 Am. St. Rep. 832; Wilmot v. Bartlett, 37 R. I. 568, 94 A. 427. Criminal conversation alone furnishes the necessary elements for the addition of punitive damages. Colwell v. Tinker, 169 N. Y. 531, 62 N. E. 608, 58 L. R. A. 765, 98 Am. St. Rep. 587; Joseph v. Naylor, 257 Pa. 561, 101 A. 846. Plaintiff, therefore, was entitled to compensatory damages, and the jury, if it saw fit, could add punitive ones. The variance in verdicts made up of such a combination of damages in cases of criminal conversation is very great, because it is generally conceded that the wealth of defendant may be an element in considering punitive damages. That may be excessive punishment to a poor man which is slight or no punishment at all to a wealthy one. Sutherland on Damages, § 406. In England a criminal conversation verdict...