Maggay v. Nikitko

• Decision Date: 18 July 1933
• Citation: 117 Conn. 206,167 A. 816
• Court: Connecticut Supreme Court
• Parties: MAGGAY v. NIKITKO.

167 A. 816

117 Conn. 206

MAGGAY v. NIKITKO.

Supreme Court of Errors of Connecticut.

July 18, 1933

Appeal from Court of Common Pleas, New Haven County; Edward J. Finn Judge.

Action by Walter Maggay against Serge Nikitko, to recover damages for alienating the affections of, and committing adultery with, the plaintiff's wife. Plaintiff, after trial to the jury, recovered verdict and judgment, and defendant appeals.

Error judgment set aside, and new trial ordered.

William B. Fitzgerald, of Waterbury, for appellant.

Michael v. Blansfield, Herman B. Engelman, and Sidney S Cassel, all of Waterbury, for appellee.

Argued before MALTBIE, C.J., and HINMAN, HINMAN, BANKS, and AVERY, JJ.

MALTBIE, Chief Justice.

The complaint in this action is in two counts, the plaintiff seeking damages in one for the alienation of his wife's affections by the defendant and in the other for criminal conversation by the defendant with her. Separate verdicts on the two counts were not asked, and the jury returned a general verdict for the plaintiff to recover $4,500, from the judgment upon which the defendant has appealed. He claims error in the charge as given and in the failure of the trial court to give certain requests to charge. The trial court in instructing the jury as to damages under the first count charged them that the financial worth of the defendant was immaterial; that the damages awarded should be solely compensatory, unless the jury saw fit to award the plaintiff punitive damages, as to which they were properly instructed; that by damages being compensatory was meant that the plaintiff could only prevail if he had lost a substantial right through wrongful acts of the defendant; in determining the plaintiff's loss the jury should consider the relations which existed between the plaintiff and his wife, whether or not they were cordial and affectionate; and that, even though their relations were strained and no affection existed, the plaintiff might still be deprived of the possibility of affection being renewed. The gist of an action for alienation of affections is the loss of consortium. " This is a property right growing out of the marriage relation and includes the exclusive right to the services of the spouse, and these contemplate not so much wages or reward earned as assistance and helpfulness in the relations of conjugal life according to their station as the exclusive right to the society, companionship, and conjugal affection of each other." Valentine v. Pollak, 95 Conn. 556, 561, 111 A. 869, 872. The plaintiff may be deprived of this right in its entirety or he may lose some substantial part of it. Foot v. Card, 58 Conn. 1, 18 A. 1027, 6 L.R.A. 829, 18 Am.St.Rep. 258. The damages to which he would be entitled depend upon the extent to which the defendant is found to have destroyed or impaired that right, and must be measured by the loss thereby incurred, as far as money can measure it. Noxon v. Remington, 78 Conn. 296, 300, 61 A. 963; Amellin v. Leone, 114 Conn. 478, 159 A. 293. The trial court failed to instruct the jury as to the basis upon which they must fix the amount of damages awarded under the first count, and the charge was erroneous in this respect.

In another respect the trial court failed to give the jury an adequate charge under the first count. In order to be a basis for a recovery by a plaintiff for the alienation of his wife's affections, the acts of the defendant relied upon, unless they were themselves wrongful, as, for instance, where the alienation results from adultery with the plaintiff's wife, must have been done intentionally, or from an unjustifiable motive, or have been persisted in with knowledge that they are doing, or are likely to do, a wrong to the plaintiff. Miller v. Pierpont, 87 Conn. 406, 410, 87 A. 785; Lillegren v. Burns Agency, 135 Minn. 60, 62, 160 N.W. 203, L.R.A. 1917B, 679; Hodge v. Brooks, 153 Ark. 222, 228, 240 S.W. 2; 2 Schouler, Marriage, Divorce, etc. (2d Ed.) § 150. While there was evidence of acts upon the part of the defendant open to no other construction than that they were wrongful and intentional, there was evidence of other acts capable of a quite innocent construction, and it is not possible to know what acts the jury found proven. Under such circumstances, the element of wrongfulness in the defendant's conduct formed so essential a part of the cause of action that the trial court should have charged the jury as to it, even though not requested.

If this action were one for alienation of affections alone these errors would require a new trial. The plaintiff contends, however, that, as the verdict was a general one, they will not have that effect unless there was error also as to the charge upon the second count. In Blake v. City of Waterbury, 105 Conn. 482, 486, 136 A. 95, 97, in applying the rule which the plaintiff invokes, we said: " But as the first claimed cause of action was correctly submitted to the jury, and the damages to be awarded would be no more or no less whether the plaintiff prevailed upon one or both, the general verdict makes of no consequence any defects in the submission of the second cause of action to the jury." This statement followed our opinion in Aaronson v. City of New Haven, 94 Conn. 690, 697, 110 A. 872, 874, 12 A.L.R. 328, where, in a similar situation, we said: " One good and sufficient specification of negligence, to wit, that the defendant neglected to remove the obstruction within a reasonable time after notice, was alleged and supported by credible testimony, and the damages to be awarded are no more or no less, whether one or both issues of negligence were found for the plaintiff. That being so, the verdict must stand." These statements of the rule require as a necessary basis for its application that the damages be the same whether the verdict was for the plaintiff upon one or the other of the counts in the complaint. In Wolcott v. Coleman, 2 Conn. 324, 338, where we first enunciated the rule, we said that, unless separate verdicts on the counts are requested, " it will be found most convenient, in practice, to allow the verdict to be given, generally, on all the counts, where they are for the same thing." In Hoag v. Hatch, 23 Conn. 585, 589, an action for slander, with a general verdict, the first five counts alleged various forms in which certain slanderous words were spoken and there was a sixth count apparently based upon a different slander, and, while we held that the verdict should not be arrested upon the first five...