Orr v. Sasseman, 16072.

• Decision Date: 04 February 1957
• Docket Number: No. 16072.,16072.
• Citation: 239 F.2d 182
• Parties: Joseph K. ORR, Appellant, v. Robert J. SASSEMAN, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

239 F.2d 182 (1956)

Joseph K. ORR, Appellant, v. Robert J. SASSEMAN, Appellee.

No. 16072.

United States Court of Appeals Fifth Circuit.

December 14, 1956.

Rehearing Denied February 4, 1957.

John L. Westmoreland, John L. Westmoreland, Jr., Atlanta, Ga., for appellant.

William H. Schroder, Atlanta, Ga., Frank J. Romano, Jr., Chicago, Ill., T. M. Smith, Jr., Atlanta, Ga., Troutman, Sams, Schroder & Lockerman, Atlanta, Ga., of counsel, for appellee.

Before TUTTLE, CAMERON and JONES, Circuit Judges.

JONES, Circuit Judge.

The appellee here was the plaintiff below in an action for the alienation by the defendant-appellant of the affections of the plaintiff's wife. The plaintiff is a resident of Evanston, Illinois. The defendant resides in Georgia. Federal jurisdiction rests on diversity of citizenship.

The plaintiff and his wife, Robert J. and Cornelia Cameron Sasseman, spent the 1954 Christmas Holidays with her parents, Mr. and Mrs. James L. Cameron, in Atlanta, Georgia. The defendant, Joseph K. Orr, had been a friend of the Camerons for some years and a frequent visitor in their home. The company of which the defendant was vice president acquired most of its raw materials from Mr. Cameron's employer. The defendant had met Mrs. Sasseman about two years before and had seen her one other time before Christmas of 1954. On the second evening after the arrival of the Sassemans in Atlanta the defendant went by the Cameron home and was introduced to the plaintiff. Shortly after New Year's Day the plaintiff returned to Illinois and his wife remained in Atlanta until the early part of February. It is during this interval of about a month that the defendant is said to have alienated the affections of the plaintiff's wife. Early in January the defendant and his wife, another married couple, and Mrs. Sasseman went out together for dinner. The others returned with the defendant and his wife to the Orr home. The other couple left, about two-thirty Mrs. Orr retired and the defendant took Mrs. Sasseman to her parents' home. One evening Mrs. Sasseman was taken by Orr in his car for a visit with her cousin and a return to her parents' home. Later in January the defendant planned a fishing trip to Marathon, Florida, primarily for the benefit of Mrs. Cameron. It was originally planned to take along another daughter, Janet Cameron, and a friend of hers. Janet and her friend were unable to go and Mrs. Cameron said that she would bring Cooie, by which name Mrs. Sasseman was known. The trip was made in the plane of the company with which Orr was connected. They were out two nights and three days or three nights and two days and returned to Atlanta. On this expedition were Mrs. Cameron, Mrs. Sasseman, Mr. Orr, and the pilot. On one other occasion Mrs. Sasseman accompanied Orr on a business trip by plane, operated by the company's pilot, from Atlanta to Athens, Georgia, of about three hours duration. Such is the extent of the association between Orr and Mrs. Sasseman in Georgia as shown by the direct evidence of the record. On February 5, 1955, Mrs. Sasseman returned to the Sasseman home in Evanston, and there was testimony that on her return confessed to a friend an affection for Orr, stated that she was "mixed up", asserted that her relationship with him was "on a friendly basis so far", and "that he had done nothing more than kiss her at that point". Mrs. Sasseman told her friend, so the friend testified, that she didn't think she loved her husband any more and that her friends and some of her other relatives in Atlanta liked Joe Orr and "they thought they made a darling couple".

Evidence was received by the Court of some events occurring subsequent to the departure of Mrs. Sasseman from Georgia. By this evidence it was shown that in the latter part of March, 1955, Orr went to Pensacola, Florida, and was there joined by his brother-in-law, Claud Shelton, Mr. and Mrs. Cameron, their daughter, Ruthie Mayes, and her husband, Jack Mayes, and Mrs. Sasseman and one of her children. This group went aboard a boat recently acquired by a corporation of which Orr was a substantial stockholder. A ten-day cruise took the boat and those on board it to Miami, Florida. The day after arriving there those in the party left for their homes. Orr and Mrs. Sasseman were on the same plane from Miami, he leaving at Atlanta, and she continuing through to Chicago. Evidence was also received of a series of meetings in Chicago between Orr and Mrs. Sasseman during April of 1955, some of which were in his hotel room. There they had a brief visit at one-thirty in the morning from Sasseman and two private investigators employed by him. This evidence of happenings after Mrs. Sasseman left Atlanta was admitted, not as proof in itself of alienation of affections, but for the purpose of showing the relationship or conduct of Orr and Mrs. Sasseman while she was in Georgia.

By a statute of Illinois, where the defendant asserts the tort was committed, if at all, punitive, exemplary, or aggravated damages are not allowed for alienation of affections and recovery is limited to actual damages sustained. Ill.Rev. Stat.1955, Ch. 68, § 34 et seq. Under the Georgia law, recovery is permitted, not only of actual damages but aggravated, punitive and exemplary damages and compensation for wounded feelings.

At the trial it was contended by the defendant that he had not alienated the affections of plaintiff's wife; that the plaintiff had long since, by conduct which we need not here recount forfeited his wife's affections; that the tort was committed, if at all, in Illinois where by statute only actual damages sustained can be recovered in an alienation action and punitive, exemplary and aggravated damages are denied.

The jury returned a verdict for the plaintiff in the amount of $17,500. The defendant filed and the court denied a motion for judgment notwithstanding the verdict and, in the alternative, for a new trial. From the judgment the defendant has appealed specifying a number of alleged errors and these he groups into three questions, (1) was the evidence sufficient to constitute a cause of action for alienation of affections, (2) was the evidence sufficient to create any issue of fact for the jury to determine, and (3) did the cause of action for alienation of affections, if any, accrue in the State of Georgia. These questions as here presented are but aspects of the single problem of whether the evidence showed a cause of action accrued in the State of Georgia. Since Mrs. Sasseman left Georgia on or about February 5, 1955, it becomes necessary to ascertain if there was evidence adequate to show the accrual of the cause of action as to that date.

The gist of the action for alienation of affections is the loss of consortium. Edwards v. Monroe, 54 Ga. App. 791, 189 S.E. 419; Hobbs v. Holliman, 74 Ga.App. 735, 41 S.E.2d 332; 27 Am.Jur. 125, Husb. and Wife, § 524. Consortium is defined to be "`the conjugal fellowship of husband and wife, and the right of each to the company, co-operation and aid of the other in every conjugal relation'". McMillan v. Smith, 47 Ga.App. 646, 171 S.E. 169, 171. It "is a property right growing out of the marriage relationship, and includes the exclusive right to the services of the spouse and to the society, companionship, and conjugal affection of each other." Hobbs v. Holliman, supra 74 Ga.App. 735, 41 S.E.2d 335. It cannot be denied that the plaintiff lost the consortium of his wife. It is not argued that she did not give her affections to the defendant. It is urged, however, that the evidence with respect to the association between the defendant and the plaintiff's wife in Georgia and prior to February 5, 1955, established nothing more than a mere friendly relation which the Court of Appeals of Georgia has said is insufficient to establish a violation of the husband's legal rights. Martin v. Ball, 30 Ga.App. 729, 119 S.E. 222. But the evidence of the subsequent actions which can be considered as throwing light upon the conduct in Georgia, and the admissions of Mrs. Sasseman on her return to Illinois, presented a factual picture from which it might well have been inferred that she returned to Illinois without any longer having any affection for her husband. This evidence was received without objection and no error is assigned because of its receipt. It is our opinion that the evidence was properly received. The subsequent events were material, and evidence of them was proper as explaining the prior conduct. Paulson v. Scott, 260 Wis. 141, 50 N.W.2d 376, 31 A.L.R.2d 706. The testimony of Mrs....