Lewis v. Roby

• Decision Date: 19 January 1907
• Citation: 65 A. 524,79 Vt. 487
• Court: Vermont Supreme Court
• Parties: LEWIS v. ROBY.

65 A. 524

79 Vt. 487

LEWIS

v. ROBY.

Supreme Court of Vermont. Windsor.

Jan. 19, 1907.

Exceptions from Windsor County Court; Seneca Haselton, Judge.

Action by Herman H. Lewis against William F. Roby. Judgment was rendered in favor of plaintiff, and defendant brings exceptions. Affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, and POWERS, JJ.

F. C. Davis and Enright & Buck, for plaintiff. Davis & Davis and F. H. Spaulding, for defendant.

TYLER, J. This action is brought for the alleged alienation by the defendant of the plaintiff's wife's affections by seducing and having sexual intercourse with her. The exceptions are to the refusal of the court to charge as the defendant requested and to some portions of the charge as given.

The defendant's fifth and seventh requests were as follows, and were not complied with: "If the jury find from the testimony that the affection or love of Effie E. Lewis was alienated from her husband by his own conduct, absence, neglect, or other acts, and not by any act of defendant, the plaintiff cannot recover in this action." "That, if the jury find from the testimony that the plaintiff's acts, conduct, abuse, or neglect contributed in bringing about any alienation of the affections of his wife (if such affections were, in fact, alienated) then the plaintiff cannot recover." The defendant insists that, if the affections of the plaintiff's wife were not alienated from him by any act of the defendant, the plaintiff cannot recover; that, if the wife's affection for her husband had been destroyed by his own conduct, there was nothing to be alienated by the defendant's adultery with her. The defendant was not entitled to have the jury instructed as requested. The instruction was correct that the only question was whether or not the defendant had sexual intercourse with Mrs. Lewis, as alleged; that the plaintiff's neglect of his wife would not justify the act, if committed; that nothing would then be a bar to an action for the tort except the plaintiff's consent thereto. This has long been the rule of the common law—some authorities say "from time immemorial." Blackstone says, vol. 3 p. 139, that for criminal conversation with a man's wife, "considered as a civil injury (and surely there can be no greater), the law gives a satisfaction to the husband in an action of trespass." Brown v. Spaulding, 63 N. H. 622, 4 Atl. 394; Weeden v. Timbrell, 5 Term R. 357, cited by the defendant, supports this doctrine. 21 Cyc. 1626; 8 Am. & Eng. Enc. tit Criminal Conversation. The point made by the defendant's fifth and seventh requests has been before courts in other jurisdictions. In Dallas v. Sellers, 17 Ind. 479, 79 Am. Dec. 489, it was held that, though the wife has no affection for her husband, another person has no right to interfere to cut off all chance of its springing up in the future. This is the doctrine in Prettyman v. Williamson, Pennewill (Del.) 224, 39 Atl. 731, and it was recognized in Fratini v. Caslini, 66 Vt. 273, 29 Atl. 252, 44 Am. St. Rep. 843; Cross v. Grant, 62 N. H. 675, 13 Am. St. Rep. 607. Evidence of unhappy relations existing between husband and wife prior to the alienation, want of affection between them, the husband's negligence or immorality, can only be shown in mitigation of damages. The rule of law and the reason of it are well stated in the text in 8 Am. & Eng. Enc. 461: "Marriage is an institution of society having its foundation in a civil contract which imposes upon the parties certain duties and invests them with corresponding rights. A fundamental right which flows from this relation, and one which the well being of society requires should be maintained inviolate, is that of exclusive marital intercourse which each acquires with the other. It follows, then, that whoever commits adultery with either of the parties commits a trespass upon the rights of the other."

Judgment affirmed.

Petition for New Trial.

The plaintiff based his right of action upon proof of the defendant's adultery with his wife, and for that proof he relied upon the testimony of his father, Henry Lewis, and that of Alexander Everett in respect to seeing the defendant and Mrs. Lewis on several occasions go to her room together and hearing their voices there. The witness Cole testified that he saw them on the evening of August 21, 1904, in the act of adultery, but the alleged act was after the suit was brought, and the evidence was offered and admitted, not as furnishing a ground of recovery, but to show an adulterous disposition between the parties, and to make it...