Paulson v. Scott
| Decision Date | 04 December 1951 |
| Citation | 50 N.W.2d 376,260 Wis. 141 |
| Parties | , 31 A.L.R.2d 706 PAULSON, v. SCOTT. |
| Court | Wisconsin Supreme Court |
Action by John T. Paulson against Myron Scott, begun on the 20th day of October, 1950, to recover damages for alienation of his wife's affections. Judgment for plaintiff rendered April 11, 1951. Defendant appeals.
The plaintiff was in military service at the time of the trial and did not attend. There is in the record some indication that Mrs. Paulson attended. However, she was not called as a witness.
The jury determined (1) that the defendant, between November 1949 and February 6, 1950 alienated the affections of the plaintiff's wife from the plaintiff; (2) that the following damages should be allowed: compensatory damages $1,500; punitory damages $2,500.
Hansen, Kaiser & Steinbring and E. B. Bundy, Eau Claire, for appellant.
Stafford & Stafford, Chippewa Falls, for respondent.
The plaintiff was married to Helen Gunderson in December 1946. The evidence sustains the determination that in spite of some difficulties between them a consistent marriage relation continued until the defendant Scott became the employer of plaintiff's wife.
The essential elements constituting a cause of action for alienation of affections are: '(a) The wrongful conduct of the defendant; (b) plaintiff's loss of the affection or consortium of the other spouse; and (c) causal connection between such conduct and such loss.' Maahs v. Schultz, 207 Wis. 624, 242 N.W. 195, 198.
The claimed responsibility of the defendant for the resulting alienation places upon the plaintiff the burden of proof of each element. In judging the testimony in this case we find the following facts are established:
The wife entered the employment of the defendant at his restaurant in November 1949. Her hours were from early evening to closing. The defendant was an operator of Scott's Nite Club, the tavern and dance hall on the outskirts of the city of Eau Claire where Mrs. Paulson was employed as a waitress until early in January 1950. The plaintiff and Mrs. Paulson were living together as husband and wife when this employment began. Occasionally the defendant called for Mrs. Paulson on his way to work and gave her transportation to the night club, and occasionally be brought her, and other employees, home after work. There is no evidence of improper conduct on these occasions.
However, on December 6, 1949, in the early morning after the night club had closed, Scott took Mrs. Paulson for a ride in his automobile. This was for pleasure and had no business purpose. They stopped for refreshments at the Cross Roads Cafe and there they were joined by one Ronnie Guch; and the three continued the drive until Scott lost control of the automobile and it was wrecked. All the occupants sustained superficial injuries. Mrs. Paulson's injuries kept her from work for a week or ten days. Referring to the Paulsons and to this drive, Scott himself testified: 'I seen they started having trouble from that time on that I know of, and arguments, I guess, where he bawled her out on account of being in the accident with me.' On December 21st, Mr. and Mrs. Paulson joined the employees of Scott's night club at a party given by the chef. A violent quarrel occurred in which Paulson struck his wife, knocking her down. The cause of the quarrel is not stated. On New Year's Eve Paulson came to the night club but he was not permitted to come in, and he raised some disturbance. Mrs. Paulson left her husband on January 1, 1950 and began an action for divorce on the grounds of cruel and inhuman treatment on January 3, 1950. One allegation of her complaint was that Paulson wrongfully accused her of wrongful association with other men. Scott testified that about a week after January 1st Mr. Paulson objected to his wife working any longer at the night club, and as a result the club dismissed her. Some time after this Paulson sent the following undated letter:
'Scotts Night Club
'[s/ John T. Paulson'
The night club did not reemploy her.
After obtaining her divorce on February 6, 1950, Mrs. Paulson went to Minneapolis to work. She became acquainted there with a woman who testified at the trial and in whose home she lived from June to September. The witness observed that Mrs. Paulson was about three months pregnant in March or April, 1950, which puts the date of conception in December or January. This witness also observed that Scott came to see Mrs. Paulson almost every week and that they stayed out overnight. Scott regularly sent money to Mrs. Paulson--$10 to $15 per week according to his testimony. In September 1950 Mrs. Paulson returned to Eau Claire and lived in the home of her brother and his wife. In this home there was a telephone with an extension leading to the brother's bedroom. Mrs. Paulson had frequent telephone conversations with Scott, and the brother listened in on the extension and with a recording machine made records of such conversations as he overheard. The brother testified from memory concerning the conversations, and the records which he had made were played over a loud speaker to the jury. Identification by the brother of the voices of Mr. Scott and Mrs. Paulson was positive, and Scott did not deny that the records were of his voice. In the brother's testimony from memory of these conversations and in the records, Scott acknowledged that he was the father of the child which Mrs. Paulson was expecting. The records were made in late September, 1950, at which time the baby had not been born. There is no evidence as to when the birth took place, but in the testimony there is evidence of a conversation between defendant and Mrs. Paulson to the following effect:
'Helen: 'Oh, yeah, have I got a lotta nice clothes for my baby, thanks to you.'
'Myron: 'Well, I can, but giving you money and stuff like that, I'm sticking my neck out a long ways.''
The court submitted the verdict set forth in the statement preceding this opinion.
The defendant's first contention is that there is not sufficient evidence in the record to support the finding of the jury that between November 1949 and February 6, 1950 he had alienated the affections of the plaintiff's wife from the plaintiff. He considers the testimony concerning the actions of Scott and Mrs. Paulson in Minneapolis when she was a divorced woman to be incompetent and prejudicial. Evidence of the association and behavior of the wife and the defendant after the divorce is, under certain circumstances, admissible to explain the defendant's conduct prior to the divorce. Helminiak v. Przekurat,...
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