Long v. Booe
| Decision Date | 26 April 1895 |
| Parties | LONG v. BOOE. |
| Court | Alabama Supreme Court |
Appeal from city court of Birmingham; W. W. Wilkerson, Judge.
Action by De Witt Booe against Robert W. Long for criminal conversation. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.
The complaint contained two counts. The first count alleged that the defendant, contriving, and wrongfully, wickedly, and unjustly intending, to injure plaintiff, and to deprive him of the comfort, fellowship, society, aid, and assistance of his wife, and to alienate and destroy her affection for plaintiff, wrongfully and wickedly debauched and carnally knew the plaintiff's wife, and thereby alienated and destroyed his wife's affection for him, and caused plaintiff to wholly lose and be deprived of his wife's fellowship, society, and assistance, which he should and would have had but for the wrong committed by defendant. The second count is the same as the first, with the additional allegations that the alleged carnal knowledge of plaintiff's wife by defendant was alleged to have taken place in Jefferson county and elsewhere in the state; and it is further alleged that, by reason of the alleged wrongs committed by defendant, the plaintiff had been degraded among his acquaintances, and had suffered shame, mortification, and grief. Issue was joined on the plea of the general issue.
The evidence showed, without conflict, that the defendant had several times had sexual intercourse with plaintiff's wife, both in Jefferson and Walker counties, when plaintiff's wife was in each county; plaintiff's wife herself, and the defendant also, testifying to the facts attending such criminal intimacy. It was further shown that defendant was intimate with plaintiff's wife after she joined plaintiff in Jefferson county. The evidence for the plaintiff tended to show that he learned of the intimacy between his wife and defendant as the result of his carrying a letter to his wife, which he refused to deliver to her until she told him who it was from, whereupon she told him it was from defendant, and then confessed to him her infidelity and intimacy with defendant. It was also shown that, upon being informed of these facts, he and his wife lived apart until about two or three weeks before the trial of this cause. The testimony for defendant tended to show that two other men had had sexual intercourse with plaintiff's wife. On the examination of plaintiff's wife as a witness, plaintiff asked her the following question "What did your husband ask you in reference to the letter, and as to the person who wrote the same?" The defendant objected to this question (1) because it called for a conversation between the husband and wife, and she was not a competent witness to prove such conversation; (2) because it called for a conversation between plaintiff and his wife in the absence of the defendant; and (3) because it called for illegal and irrelevant evidence. The court overruled defendant's objection, and defendant duly excepted. Upon the witness answering that she told plaintiff defendant wrote the letter, defendant moved to exclude the answer, on the same grounds interposed to the question, and duly excepted to the overruling of his motion. There were other questions asked the wife relative to the conversation between herself and plaintiff when she told him about the letter, to which defendant interposed the same objections, and separately excepted to the court's overruling his several objections; and he also made like motions to exclude the answers of the witness to the several questions, and separately excepted to the court's overruling his several motions. After the close of plaintiff's testimony defendant moved the court to exclude all conversations between plaintiff and his wife which occurred in the absence of defendant, and to exclude the confession of the wife to plaintiff of her infidelity. Thereupon the court reconsidered its former rulings in the matter, and excluded all such evidence, except so far as the same tended to show information to the plaintiff of adultery of his wife, and the time he acquired such information, and instructed the jury accordingly. The plaintiff introduced in evidence, and read to the jury, two or three letters written by his wife to him before she met defendant, in which letters she expressed much love and affection for plaintiff. The defendant objected to the introduction in evidence of these letters, and moved to exclude them on the ground that they were illegal irrelevant, and immaterial evidence. The court overruled his objection and motion, and defendant duly excepted.
Upon the introduction of all the evidence, the plaintiff asked the court to give the following written charges to the jury: (1) "The law presumes, where the defendant committed adultery with the wife, the loss of the consortship of the wife; and it is not necessary for the husband, in an action for damages, to prove alienation of the wife's affections, or actual loss of her society or assistance." (4) "The court charges the jury that, in estimating the damages, the jury will consider the fact that the defendant pursued the wife with his attentions, and had sexual intercourse with the wife, after she had joined her husband in Birmingham, until the plaintiff had information of the adulterous intercourse." (6) "The court charges the jury that, under the undisputed evidence in this case, the jury will find a verdict for the plaintiff." (7) "The court charges the jury that, if the evidence shows that the plaintiff suffered grief, shame, and mortification because of the wrongs of the defendant, they can consider that as an element of damages." The defendant separately excepted to the court's giving each of these charges requested by the plaintiff, and also separately excepted to the refusal of the court to give each of the following written charges asked by him: (1) "If the jury believe from the evidence that Mrs. Booe had committed an act of adultery with another man or men prior to the time defendant had sexual intercourse with her, the plaintiff cannot recover any damages for the alleged alienation of his wife's affections for him." (2) "That as the evidence shows that plaintiff and his wife are living together as husband and wife, and have been so living for two weeks or more, he is not entitled to recover any damages for the loss of the association and services of his wife while the plaintiff and his wife have been living together as such husband and wife." (3) "That, if the jury believe the evidence in this case, they cannot find any damages for any loss of service of his, plaintiff's, wife, alleged to have been caused by the alleged wrongs of the defendant." (4) "I charge you, gentlemen of the jury, that you cannot give any damages for anything that defendant may have done in Walker county." (4 1/2) "I charge you, gentlemen of the jury, that you cannot give any damages for anything done by defendant outside of Jefferson county, Alabama, under the first count of the complaint." (5) "That if the jury believe from the evidence in this case that the plaintiff's wife committed act or acts adultery with another man or men, prior to the sexual intercourse of the defendant with her, then I charge you that you can only give the plaintiff nominal damages."
There was judgment for the plaintiff, assessing his damages at $2,500. The defendant appeals, and assigns as error the several rulings of the trial court upon the evidence, to which exceptions were reserved, and the giving of the charges requested by plaintiff, and the refusal to give the several charges asked by the defendant.
Hewitt, Walker & Porter and Coleman & Sowell, for appellant.
Ward & John, for appellee.
The several exceptions reserved to testimony as to conversations between Booe and his wife, on the occasion when the latter's adultery with Long was made known to the former, were emasculated by the subsequent exclusion of all such evidence, except in so far as it went to show the naked fact of Booe's coming at that time to a knowledge of the infidelity of his wife; and we do not understand that the competency of the testimony for this limited purpose is questioned by the appellant.
The only other exception taken to the admission of testimony had reference to letters which passed between the husband and wife prior to her infidelity, and which contained mutual expressions of love and affection for each other. There can be no doubt, upon principle or authority, of the propriety of the trial court's action in admitting these letters to "show the terms upon which the husband and wife lived together before the seduction." 1 Greenl. Ev. § 102, note.
The city court properly charged the jury to bring in a verdict for the plaintiff, if they believed the evidence. This...
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