Miller v. Pierpont

• Decision Date: 30 July 1913
• Citation: 87 Conn. 406,87 A. 785
• Court: Connecticut Supreme Court
• Parties: MILLER v. PIERPONT.

87 A. 785

87 Conn. 406

MILLER

v. PIERPONT.

Supreme Court of Errors of Connecticut.

July 30, 1913.

Appeal from Superior Court, New Haven County; William L. Bennett, Judge.

Action by Herman Miller against Elmer M. Pierpont, for alienating the affections of plaintiff's wife. From a judgment for defendant, plaintiff appeals. Affirmed.

Ulysses G. Church and Emil Hummel, both of Waterbury, for appellant.

Walter E. Monagan, of Waterbury, for appellee.

BEACH, J. There was evidence from which the jury might have found that the defendant, with the plaintiff's consent, employed the plaintiff's wife in May, 1909, as housekeeper, paying her $12 a week; that in March, 1910, she told the defendant, on returning from a visit to her husband, that the latter had accused her of being unfaithful, and ordered her to leave the house and stay away; that thereafter she was afraid to return to and live with her husband, and bad since remained in the defendant's employ as housekeeper at her own request; that the defendant had not enticed, persuaded, or advised the wife to remain away from her husband; that the husband was quarrelsome, and had lost the affection of his wife through his own fault; and that she had brought a suit for divorce against him, on the ground of desertion, before this action was commenced.

The first assignment of error is based on the admission in evidence of a savings bank book belonging to the wife, showing a number of deposits of sums of money in the Waterbury Savings Bank before and during her employment as the defendant's housekeeper. Mrs. Miller, before the book was offered in evidence, had testified that she was employed by the defendant as housekeeper, and regularly paid $12 a week, a large part of which she had deposited in the Waterbury Savings Bank; and she was allowed, without objection, to identify the hook, and to testify that the money deposited in that account was earned at the defendant's home. The evidence having gone thus far without objection, the book itself was logically corroborative of Mrs. Miller's testimony, and the failure to offer it in evidence might have been unfavorably commented on. The objection was, not that the entries were not properly proved, but that the book was a self-serving declaration and remote, and, being thus limited, the objection was properly overruled; for entries in a savings bank book, whose authenticity is not challenged, are competent evidence that moneys were deposited as credited therein.

The second, third, and fourth assignments of error are as follows:

"(2) The court erred in charging: 'It is not necessary for him (the plaintiff) to show that there was full affection, if he can show that defendant deprived him of what remains of that affection—deprived him entirely of what remained of that affection between himself and his wife.'

"(3) The court erred in charging: 'Plaintiff here claims to have shown, whatever the state of their affections may have been when the wife went away into the employment of Mr. Pierpont, the defendant, that later her affection became entirely alienated from him. Of course that fact must be proved, and the plaintiff claims to have shown it by proof of the history of the case leading up to the time when the wife brought a divorce against him, and her declarations, which he says are proven, that she refused altogether to come back and live with him.'

"(4) The court erred in failing to charge that the plaintiff was entitled to recover in the action under his complaint if he prove that the defendant had wrongfully alienated the affections of his wife, and that it was not necessary for the plaintiff to show that his wife's affections had been entirely alienated, but if he prove that there had been a partial alienation of affection by the defendant from which the plaintiff had suffered damage, he could recover."

The plaintiff complains that by these instructions and omissions the burden was put upon him of proving a total, as distinguished from a partial,...