Matusak v. Kulczewski
| Citation | 145 A. 94,295 Pa. 208 |
| Decision Date | 26 November 1928 |
| Docket Number | 127 |
| Parties | Matusak v. Kulczewski, Appellant |
| Court | United States State Supreme Court of Pennsylvania |
Argued October 2, 1928
Appeal, No. 127, March T., 1928, by defendant, from judgment of C.P. Beaver Co., Dec. T., 1926, No. 378, on verdict for plaintiff, in case of Anthony Matusak v. John Kulczewski. Reversed.
Trespass for alienation of wife's affections. Before McCONNEL, J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiff for $3,000. Defendant appealed.
Errors assigned were rulings on evidence, referred to in opinion of the Supreme Court, quoting record.
The judgment is reversed with a venire facias de novo.
Joseph Knox Stone, with him L. M. Sebring, for appellant. -- If it is admissible to show that the wife, prior to the alleged misconduct with defendant, had been guilty of adultery with other persons, it would be admissible to show that she was an inmate or keeper of a bawdyhouse: Yocum v. Yocum, 3 Pa. Dist. R. 615; Com. v. Schoen, 25 Pa.Super. 211; Com. v. Eagler, 10 Kulp 107; Com. v. Frey, 19 York Co. R. 122.
Defendant sought to offer evidence that the house of plaintiff and his wife was frequented by persons of bad character and reputation, this being one stage in the proof that the wife of plaintiff was a common prostitute, and that she was therefore guilty of adultery or such other conduct before defendant's alleged acts that her credibility was affected or damages mitigated, or that her husband permitting her to keep or to assist him in keeping a bawdyhouse, before the alleged acts of defendant, would have such fact proven against him to affect her credibility and to mitigate damages: Com. v. Eagler, 10 Kulp 107; Yocum v Yocum, 3 Pa. Dist. R. 615.
F. G Moorhead, of Moorhead & Marshall, for appellee.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Defendant, in an action for alienation of affections and criminal conversation, offered to prove as a defense and in mitigation of damages (a) that prior to the injury complained of plaintiff and his wife were conducting a house of ill repute, and (b) the reputation, for unchastity, drunkenness, gambling and tippling, of the persons who visited the house.
The court below rejected the evidence, holding that, while the reputation of the plaintiff and wife were in issue, the court knew "of no case in which the reputation of a house was admissible" to show character except in those cases where it was the point at issue, as, for instance, an indictment for keeping a bawdyhouse.
The grounds for recovery in an action for criminal conversation are the violation of the right of consortium, loss of services, injury to social position, impairment of family honor, and mental suffering coming from the spouse's infidelity: Matheis v. Mazet, 164 Pa. 580. As affecting the compensation for injury to these rights the characters of both plaintiff and spouse are in issue. Good character is presumed to exist in plaintiff and spouse, and evidence need not be offered to show it unless it is attacked. Slight insinuation is all that is necessary, however, to permit plaintiff to show it: Clark v. North American Co., 203 Pa. 346; Burkhart v. North American Co., 214 Pa. 39.
The nature of the evidence to attack plaintiff's case may be either actual or reputed character, or both. In Pennsylvania, in an action for seduction, where the damages recoverable are much the same, we early held that neither actual character nor particular acts could be inquired into, and that the assault on character must be made through reputation. "A person may have a very good reputation . . . notwithstanding acts of indiscretion": Hoffman v. Kemerer, 44 Pa. 452; Miller v. Curtis (Mass.), 32 N.E. 1039. However, our later cases have adopted a more liberal view, and, in an opinion by President Judge RICE, without elaborating his reasons, it was held that particular acts as well as reputation may be used as evidence in mitigation of damages in an action for criminal conversation: Ehrhart v. Bear, 51 Pa.Super. 39; citing Gilchrist v. Bale, 8 Watts 355. General character or reputation in general for everything is not the issue ( Norton v. Warner, 9 Conn. 172; 30 C.J. 1164), but specific reputation as to the matters in issue is relevant in so far as it bears on or affects any of the measures of damages. See authorities collected in Good v. Grit Publishing Co., 36 Pa.Super. 238, 259.
Acts of infidelity on the part of the participating spouse before that complained of in the action are relevant to the claim for damages embraced in mental suffering: Zitzer v Merkel, 24 Pa. 408; Ehrhart v. Bear, supra. The law does not permit...
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