Lena M. Nieberg v. Victor Cohen
| Citation | 92 A. 214,88 Vt. 281 |
| Parties | LENA M. NIEBERG v. VICTOR COHEN ET AL |
| Decision Date | 10 November 1914 |
| Court | United States State Supreme Court of Vermont |
May Term, 1914.
CASE FOR CONSPIRACY. Plea, the general issue. Trial by jury at the September Term, 1913, Chittenden County, Stanton, J presiding. At the close of all the evidence the defendants moved for a directed verdict, on the ground stated in the opinion. Motion denied, to which the defendants excepted. Verdict and judgment for the plaintiff. The defendants excepted.
Judgment reversed and judgment for defendants.
Theodore E. Hopkins and Sherman R. Moulton for the defendants.
Present POWERS, C. J., MUNSON, WATSON, HASELTON, and TAYLOR, JJ.
Louis M. Nieberg was found guilty of committing adultery with Hattie Cushing, and was sentenced to the State prison and served a part of his term. His wife brings this suit against Victor Cohen, Max Agel, and Hattie Cushing to recover damages for the loss she sustained in being thus deprived of his affection, society and support; charging that the defendants conspired together to procure, and did procure the commission of the offence by means of persuasions and the administering of intoxicating liquor and drugs. Hattie Cushing has not been personally served, nor been within the State since the writ issued, and the trial proceeded against Cohen and Agel alone.
The only exception argued is that taken to the refusal of the court to direct a verdict for the defendants. It was claimed below, and is now argued, that there was no evidence tending to establish the alleged conspiracy, and none tending to show that the defendants did anything to influence Nieberg to commit the crime; that in doing all that the evidence tended to establish, the defendants did nothing but what they had a legal right to do, and that the motive with which one does a legal act is not material.
A somewhat particular presentation of the evidence will be found in the statement of the case.
There was certainly evidence tending to show that Cohen and Agel were acting in concurrence in the execution of a plan previously agreed upon. The claim made by the defendants raises the question whether the undertaking which the evidence tends to establish was merely to keep Nieberg under observation to get evidence of a crime likely to be committed and secure his punishment, or whether it covered a purpose and attempt to bring about the commission of a crime through agencies of their own. The use of the word "persuasions" in the declaration did not confine the plaintiff to influences by word of mouth. The influence may have been exerted through surrounding conditions for which the defendants were responsible. We think the evidence tends to show that Cohen and Agel conspired to bring about the commission of an offence at a time opportune for discovery and proof, by creating conditions calculated to secure the desired result; and that they were actuated therein solely by a desire to injure Nieberg. But it cannot be said that the evidence fairly and reasonably tends to show that Nieberg was so intoxicated as not to be master of himself. We know of no other case like this, and before carrying our conclusions further we give some preliminary consideration to the relation between husband and wife as bearing upon the latter's rights of action.
The wife had no remedy at common law for the alienation of her husband's affection and the consequent loss of his society and aid. This was partly because of her inability to sue independently of her husband, and partly because she was not considered to have any property interest in her husband's services. Knapp v. Wing, 72 Vt. 334, 47 A. 1075. But in nearly all jurisdictions where the wife is now empowered to sue alone and to hold separate property, she is held entitled to recover damages of the person causing the alienation, and this without the aid of any special statute. Note, 46 Am. St. Rep. 472.
In other instances of a wrongful deprivation of the husband's support the right of recovery is given by statute. The right to recover for the pecuniary injury resulting to a widow from the loss of her husband's support through his death from a wrongful act did not exist at common law and depends wholly upon the statute. Legg v. Britton, 64 Vt. 652, 659, 24 A. 1016. A wife who has lost the support of her husband through the disabling effects of intoxicating liquor unlawfully furnished recovers solely by force of the statute. Enactments of this nature, known as the Civil Damage Acts, give a cause of action where none existed at common law. Campbell v. Harmon, 96 Me. 87, 51 A. 801; Volans v. Owen, 74 N.Y. 526, 30 Am. Rep. 337. The recognition of the right of the wife to recover for the loss of support resulting from an alienation of her husband's affection, as a right in existence when her common law disabilities are removed, is doubtless due to the nature of the marriage relation and the mutuality of its peculiar obligations. See Bennett v. Bennett, 116 N.Y. 584, 590, 23 N.E. 17, 6 L.R.A. 553.
It may aid us somewhat in giving this case its proper status if we contrast it with the familiar cases of our reports. The case is not the ordinary suit for alienation of affection and loss of society through an adulterous intercourse. Hattie Cushing, and she alone, would have been the respondent to such a charge. The husband's failure to give his wife the further benefit of his society was not from any lack of willingness on his part, but because he was prevented from living with her by his incarceration. Nor is the case one against relatives or friends who have sought from motives good or bad to separate husband and wife. The defendants have not tried to get the plaintiff's husband to abandon her, nor proceeded from any malicious feeling against her, nor in fact caused her any pecuniary loss except that incident to the husband's punishment for crime.
If this had been the usual suit against the woman whose act is the basis of the plaintiff's claim, there could have been no recovery. A single instance of adultery, had by a man accustomed to marital infidelities with a common prostitute who serves his purpose on a chance occasion, does not constitute the enticement and alienation essential to a recovery. This action is not an alienation suit, but is like it in respect to the damage claimed. The suit seeks a recovery for the same loss of society and support that is sustained in an alienation case, but with the loss due to an imprisonment for the crime of adultery instead of to an alienation of affection. The immediate cause of the damage sued for was the imprisonment. The more remote cause was the action of the defendants.
It may be said generally that when one is injured by the wrongful act of another, and a third person suffers an indirect and consequential loss because of some contract obligation to the injured party, the loss suffered by such third person does not constitute a cause of action. Conn. etc. Ins Co. v. New York etc. R. R. Co., 25 Conn. 265, 65 Am. Dec. 571; Rockingham etc. Ins. Co. v. Bosher, 39 Me. 253, 63 Am. Dec. 618; Ashley v. Dixon, 48 N.Y. 430, 8 Am. Rep. 559; Anthony v. Slaid, 52 Mass. 290. It has been held, however, that where one is injured by the wrongful act of another and a third party is indirectly and...
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