Lyon v. Prouty
| Decision Date | 26 October 1891 |
| Parties | LYON v. PROUTY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Plaintiff's declaration contains two counts. The first charged the defendant with debauching and carnally knowing plaintiff's wife, and thereby alienating her affections from plaintiff. The second count charged defendant with enticing away plaintiff's wife. Defendant answered by a general denial as to both counts. The trial court allowed plaintiff to testify, against the objection of defendant, that in a room in defendant's house, adjoining one occupied by defendant, plaintiff asked his wife, in the presence of their 14-year-old daughter, if she would go with him, to which she replied, "No, sir."
W.S.B Hopkins and J.R. Kane, for plaintiff.
Kent & Dewey and A.W. Curtis, for defendant.
The defendant claims that the evidence relating to the conversation between the plaintiff and his wife should have been excluded, and that the plaintiff connived at the intercourse between the defendant and plaintiff's wife, and cannot now recover damages for such intercourse. We do not understand him to rely upon any other grounds for setting aside the verdict. The exception taken to the refusal of the court to rule, as requested by defendant, that, if the husband and wife were living in a state of separation, the action could not be maintained because of criminal connection alone, has not been argued to us, and we therefore treat it as waived.
1. The answer was simply a general denial. It did not set up connivance. The attention of the court does not appear to have been called during the trial to that ground of defense. No instructions or rulings were asked or exceptions taken covering it, and the trial appears to have proceeded on wholly different ground. Even if the question of connivance was open to the defendant under the general denial contained in the answer, it was not raised; and it is well settled that questions upon which no ruling was asked or exception taken at the trial cannot be considered upon a bill of exceptions unless it appears upon the conceded facts that there is an objection to the plaintiff's recovery which cannot be removed by further proof, or unless it appears from a mistake or misapprehension or misapplication of legal principles that the case has resulted in a mistrial. Bond v. Bond, 7 Allen, 1; Slater v. Rawson, 1 Metc. (Mass.) 450; Draper v. Saxton, 118 Mass. 427; Goodnow v. Hill, 125 Mass. 587. This case does not come within either of these exceptions.
2. The circumstances surrounding the conversation between the plaintiff and his wife are not very fully disclosed....
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