Judah v. Goldsmith

• Decision Date: 10 January 1929
• Docket Number: No. 12895.,12895.
• Citation: 164 N.E. 496,90 Ind.App. 81
• Parties: JUDAH v. GOLDSMITH.
• Court: Indiana Appellate Court

90 Ind.App. 81

164 N.E. 496

JUDAH

v.GOLDSMITH.

No. 12895.

Appellate Court of Indiana, in Banc.

Jan. 10, 1929.

Appeal from Johnson Circuit Court; Fremont Miller, Judge.

Action by Charles J. Goldsmith against J. William Judah. Judgment for plaintiff, and defendant appeals. Affirmed.

Instructions 12, 16, and 23, challenged by defendant, were as follows:

(12) “This is an action by the husband for the alienation of his wife's affections, and in such action the wife of the plaintiff is not a competent witness and is excluded from testifying, and I instruct you that no inference should be drawn by you for or against either party to this suit from the fact that the plaintiff's wife has not testified in this case.”

(16) “It is the law that where one spouse voluntarily gives her affections to another, when such other person does nothing wrongfully to win her affections, then no ground of liability attaches against such other person. Also, if a man gives presents to another man's wife and pays her other attentions by and with the consent of such woman's husband, with no evil intents, and not intending to alienate her affections from her husband, such husband cannot recover against such person even though as a consequence of such acts his wife conceived a fondness and affection for such other party.

“But where a man's conduct was the controlling cause which led to the estrangement of another man's wife then there would be liability against such party which caused such estrangement.”

(23) “In a case of this kind you may also add to his damages, if any, such amount of exemplary or punitive damages by way of punishment, as you in your judgment may deem right and proper.

“And you may also consider some facts in mitigation or in reduction of damages in cases of this character. So if you find from the evidence there was adultery between the defendant and plaintiff's wife you may consider whether the wife was sought and importuned by the defendant or whether she threw herself in his way and whether she was overcome by persuasion or whether she yielded willingly; “if you believe from the evidence that she willingly and readily assented to such relationship with the defendant this will be a proper matter for your consideration in mitigation or reduction of the damages in this case, if any. Or if you believe from the evidence that prior to such relationship with the defendant, if you find there was such relationship, she entertained little or no affection for her husband and was cold and indifferent towards him by reason of her husband's actions toward her or from any cause or circumstance not produced by the defendant in the case, then you may properly consider such fact in mitigation or reduction of the damages, if any, in this case.”

Featherngill & Drybread, of Franklin, for appellant.

Staff & Staff and Henry E. White, both of Franklin, and Owen S. Boling, of Indianapolis, for appellee.

NICHOLS, J.

Action for damages for the alleged alienation, by appellant, of the affections of Bernice M. Goldsmith, the former wife of appellee. It is alleged in the first paragraph of appellee's complaint that on January 1, 1923, and thereafter, appellant was engaged in operation of the Willard Hotel in the city of Franklin, Ind.; that said Bernice M. Goldsmith was employed at said hotel; that appellant by means of numerous marks of kindness and affection, and by various artifices and devices shown to her, alienated her affections from appellee; and that appellant sustained improper relations with her. It is alleged in the second paragraph of appellee's complaint that on or about January 23, 1923, and at other times, appellant sustained improper relations with appellee's wife, and thereby alienated her affections from appellee.

[1][2] Appellant seeks to present error of the court in the exclusion of the testimony of appellee upon his cross-examination, and error in the admission of his evidence in his examination upon rebuttal; but the only reference made in the brief as to where such evidence can be found is the reference to the reason in the motion for a new trial indicating the place in the transcript where the motion for a new trial is found. This is not sufficient to present the alleged error. Harrold v. Fuenstueck, 31 Ind. App. 275, 67 N. E. 699. Further, it does not appear in the statement of the record, in appellant's brief, that there was any objection on the part of appe...