Noxon v. Remington

• Decision Date: 06 October 1905
• Citation: 61 A. 963,78 Conn. 296
• Parties: NOXON v. REMINGTON.
• Court: Connecticut Supreme Court

61 A. 963

78 Conn. 296

NOXON

v. REMINGTON.

Supreme Court of Errors of Connecticut.

Oct. 6, 1905.

Appeal from Superior Court, New Haven County; Ralph Wheeler, Judge.

Action by Martha C. Noxon against Mary E. Remington for alienation of the affections of plaintiff's husband. A verdict was rendered in favor of plaintiff for $3,750, of which $2,050 was remitted by order of court as a condition to overruling a motion for new trial, and from a judgment in favor of plaintiff for $1,700, defendant appeals. Affirmed.

Cornelius J. Danaher and D. Ward Northrop, for appellant. Oswin H. D. Fowler and Patrick T. O'Brien, for appellee.

HALL, J. The plaintiff, who is 75 years of age, was married in 1851 to her husband, John O. Noxon, who is 74 years of age. She alleges in her complaint that in 1901 the defendant, who is 64 years of age, by her blandishments and seductions alienated the affections of her husband, and that she has since committed adultery with him, and demands $10,000 damages. The law regards the right of a wife to the conjugal society and affection of her husband as a valuable property, for an injury to which she may maintain an action for damages in her own name. Foot v. Card, 58 Conn. 1, 18 Atl. 1027, 6 L. R. A. 829, 18 Am. St. Rep. 258.

In the present case the trial judge charged the jury that there could be no recovery without proof that the defendant had committed adultery with the plaintiff's husband as alleged. Under this instruction, which is not made a ground of exception by either party, the jury having returned a verdict for the plaintiff for an amount which is not stated in the record, but which counsel for both parties claim was $2,500, the judge returned them to a further consideration of the question of damages without informing them whether he considered the amount of the verdict too large or too small, and the jury, after further consideration of the case, returned a verdict for $3,750, which the court accepted. The defendant having filed a motion for a new trial upon the ground that the verdict was against the evidence and that the damages awarded were excessive, the trial judge directed the plaintiff to remit $2,050 of the amount of the verdict; and, the plaintiff having filed such remittitur and accepted a judgment of $1,700, the defendant's motion for a new trial was denied, and judgment was entered for the plaintiff for $1,700.

The defendant claims that the trial court erred in denying the motion for a new trial, and in rendering judgment for a sum less than the amount of the verdict without the consent of both parties. The evidence in the case is not before us, and we have no other reason for considering the damages awarded by the jury excessive or against the evidence than that the action of the trial court indicates that such was its opinion. Had the defendant desired to appeal to this court from the denial of her motion for a new trial, and ask for a new trial either upon the ground that the verdict as rendered by the jury for $3,750, or as reduced by the remittitur to $1,700, was against the evidence, she should have proceeded under section 805 of the General Statutes of 1902, and have had the evidence made a part of the record. But, assuming that upon the record before us we ought to regard the damages awarded by the verdict of $3,750 as excessive, the trial court committed no error in denying the defendant's motion for a new trial upon condition that the plaintiff should remit $2,050, and rendering judgment for the remaining $1,700 of the amount of the verdict. Upon this point the practice is not uniform in different jurisdictions. In England the House of Lords, in the recent case of Watt v. Watt, L. R. App. Cas. [1905] 115, overruling upon this question Belt v. Lawes, 12 Q. B. D. 356, held that in an action of tort an appellate court had no power, without the consent of both parties, to order a new trial unless the plaintiff should consent to reduce to a certain sum the damages awarded by the verdict, and to render judgment for such reduced amount, upon the ground that such action was in effect an assessment of the damages by the court, and an invasion of the defendant's right to a trial by jury. There are similar decisions by the courts of several of the states of this country. On the other hand, the practice of requiring the plaintiff in such cases to submit to a new trial unless he remits a part of a verdict, the amount of which is clearly excessive, is sanctioned by the Supreme Court of the United States and by many of our state courts. In Arkansas Cattle Co. v. Mann, 130 U. S. 69, 9 Sup. Ct. 458, 32 L. Ed. 854, it is said that the practice (of requiring a remittitur in such cases) approved in N. P. R. R. Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755, is sanctioned by sound reason, and is in no sense an impairment of the constitutional right of trial by jury; that "the authority of the court to determine whether the damages are excessive implies authority to determine when they are not of that character";...