Prettyman v. Williamson

• Decision Date: 24 February 1898
• Citation: 17 Del. 224,39 A. 731
• Court: Delaware Superior Court
• Parties: WILLIAM F. PRETTYMAN v. EDWIN P. WILLIAMSON

39 A. 731

17 Del. 224

WILLIAM F. PRETTYMAN v. EDWIN P. WILLIAMSON

Superior Court of Delaware, New Castle County

February 24, 1898

Superior Court, New Castle County, February Term, 1898.

ACTION for damages for alienation of wife's affections. (For further facts see charge of Court.)

At the trial, Mr. Ponder, for the plaintiff, in opening the case to the jury, proceeded to read the second and sixth counts in his narr, they being the counts on which the plaintiff based his suit.

Mr Cooper, for defendant, objected to counsel's reading the two counts in the declaration, unless the whole declaration was read.

Verdict for plaintiff for $ 1,000.00.

James W. Ponder and Walter H. Hayes for plaintiff.

Peter L. Cooper, Jr., for defendant.

LORE C. J., and PENNEWILL and BOYCE, J. J., sitting.

OPINION

PENNEWILL, J

There can be no objection to his reading the two counts mentioned.

It was admitted that a divorce was granted by the Legislature to Mary L. Prettyman from her husband, William F. Prettyman, without resistance upon his part, on May 26, 1897.

An offer was made by Mr. Hayes to prove by Henry Yost, that on September 9, 1897, he saw the defendant in the house of Mrs. Prettyman.

This testimony was objected to by defendant's counsel as incompetent, because it was after the divorce had been granted by the Legislature. The objection was sustained.

Mr. Ponder produced Richard W. Humphreys, and after proving that he was a regularly ordained minister of the Methodist Episcopal Church, stationed at Philadelphia, produced a paper which the witness identified as a marriage certificate. The witness was then asked the following question: "Did you perform a marriage ceremony in the City of Philadelphia, uniting in matrimony the people who are named in this certificate?"

Mr. Cooper:--The question is irrelevant under the pleadings. The only allegation of marriage in the declaration is found in the third count, which alleges that the plaintiff and his wife were married according to the laws of the State of Delaware. If the witness married them in Philadelphia, it can only mean a marriage according to the laws of the State of Pennsylvania. In this class of cases (it being a case of crim. con. according to the pleadings) strict proof of marriage as alleged is required.

Wheaton vs. Selwyn's Nisi Prius, 14 (under "Adultery"); Taylor on Evidence, 190-191.

Mr. Hayes, for the plaintiff, in reply cited:

Rev. Code, Sec. 2, Chap. 71, p. 594; Williams vs. Walton & Whann Co., 1 Hardesty 35.

PENNEWILL, J:--

We think the testimony is proper.

The defendant's counsel excepted to the above ruling of the Court. The witness then proceeded to state that he supposed the marriage was performed in Philadelphia, that he had no recollection of having performed a marriage in the State of Delaware in all his ministry; that he recognized the marriage certificate as genuine; that he wrote it and would say that he united William F. Prettyman and Mary L. Wilson in matrimony according to the forms and usages of the Methodist Episcopal Church, and that at the time the certificate bore date he was a regularly ordained minister of that Church and had authority to solemnize marriages; but had no recollection at all of the circumstances of performing the marriage ceremony or of the parties.

Mr. Ponder here offered the marriage certificate in evidence and the same was objected to by Mr. Cooper on the ground that the parties mentioned therein had not been identified.

The plaintiff, William F. Prettyman, was then called to the stand, and after proving that the parties mentioned in the certificate were himself and wife, the certificate was again offered in evidence and admitted without objection.

The plaintiff, in reply to a question by Mr. Hayes, stated that while he lived on Twenty-second Street in Wilmington, having separated from his wife, the defendant came to him and told him if he would go back home and live in the house, 827 Orange Street, which his wife was renting from the defendant, he could have it to live in and all there was in it.

This line of testimony was objected to by Mr. Cooper, on the ground that it was subsequent to the plaintiff's separation from his wife; that a husband cannot recover for loss of services or affections of the wife after he has abandoned her.

John Fry vs. Adam Drestler, 2 Yeates (Pa.) 278; Weeden vs. Trimbrell, 5 Durnford & East 357.

Mr. Hayes stated that what he proposed to prove by the plaintiff was that the defendant was trying to patch up an agreement and that it was in the nature of an admission on his part.

PENNEWILL, J:--

We think the authorities cited are not applicable to this case. They go upon the theory that there was a complete separation between the husband and wife, and voluntary on the part of the husband as well as the wife. As we understand the testimony of the husband (which of course is for the jury to consider), it is that he was forced to leave his wife by reason of her misconduct, growing out of what he alleges to have been the misconduct of this defendant. We think, therefore, there was no agreement on his part, if that be true, to separate, and that it was involuntary so far as he was concerned.

The defendant's counsel excepted to the above ruling.

Mr. Hayes called Courtland C. Montgomery, Recorder of Deeds of New Castle County, to the stand, and offered to prove by the records of his office, deeds of certain property to Edwin P. Williamson, the defendant, with a view to establishing the pecuniary ability of the defendant to respond in damages.

This line of testimony was objected to by Mr. Cooper as irrelevant.

The objection was overruled, the testimony admitted and an exception noted for the defendant.

The records referred to were then offered in evidence by plaintiff's counsel and the same were objected to by counsel for the defendant, unless the plaintiff could show that the defendant was still the owner of the property in question.

PENNEWILL, J:--

This proof may be rebutted; it may be shown that the title is not in him now; yet it is prima facie evidence and the best evidence in this respect, and we think it is admissible.

The defendant's counsel excepted to the above ruling.

MOTION FOR NON-SUIT.

At the conclusion of the plaintiff's testimony Mr. Cooper, on behalf the defendant, moved for a non-suit upon two grounds:

1. It appearing in this case by uncontradicted testimony that Mary L. Prettyman, wife of the plaintiff, having secured the passage of an act by the General Assembly (1897) divorcing her from the plaintiff in this cause, and the Legislature in the proper exercise of its legislative powers and sitting as a judicial body for that purpose, having heard the allegations of the parties and granted said divorce, established and determined the rights of the parties in this cause, and the said act of Assembly is a complete bar to this cause of action.

2. Because there was no evidence in the case which would warrant the Court in sending it to a jury.

Mr. Hayes, for the plaintiff:--As to the first ground urged by the defendant's counsel--that the divorce is a bar--I hold that by the record in the case and by proof made by the plaintiff, it appears that the suit was commenced May 6, 1897, and that the divorce referred to was granted on the 26th day of May, 1897. Therefore the first proposition of the counsel for the defence resolves itself into this: That the defendant could be properly and legally sued in this action at the time suit was brought, and that he then, in aid of this woman, could go to the Legislature of this State and obtain a divorce for her from her husband and thereby prevent this Court from exercising its judicial powers in settling and adjudicating a controversy between the plaintiff and the defendant in this suit. If that were the case, then the act of divorce, if of any validity, would have a retroactive operation, which is against all law and against the decisions of this Court, unless the Statute itself expressly provides it.

Wood vs. Vernon, 13 Del. 48, 8 Houst. 48, 12 A. 656.

PENNEWILL, J:--

The Court think a non-suit should not be granted in this case, and the motion is refused.

Senator John Pyle was produced and asked by Mr. Cooper the following question: Was a day fixed by the Divorce Committee of the Legislature for a hearing in the case of Prettyman vs. Prettyman and were the witnesses who presented themselves on that day heard?

Objected to by Mr. Hayes as irrelevant.

Objection sustained and an exception noted for defendant.

Mr. Cooper next offered in evidence the record of the divorce in question.

Mr. Hayes objected to its going in evidence as a bar, but did not object to its being admitted in mitigation of damages.

PENNEWILL J:--

It is admitted in mitigation of damages.

PLAINTIFF'S PRAYERS.

The plaintiff prayed the Court to instruct the jury as follows:

1. That it is well settled that a husband may maintain an action for the alienation of his wife's affections. The ground of action in such case is that the husband has the right to the comfort and assistance of his wife, and thus by procuring her to leave or to continue away from him this right is violated and he sustains an injury. The wife owes to the husband the duty of living with him and seeking to promote his interests and happiness, and by preventing the performance of this duty a wrong is done him, involving a pecuniary loss as well as loss of peace and comfort in the marriage relation, and the wrongdoer, whoever he is, is liable in an action for damages brought by the husband.

Tiffany's Domestic Relations, 74, 79; Jaggard on Torts, 464, 466; Winmore vs. Greenbank, Willes Reps., 577, 580, 581, 583 584; Hutchinson vs. Peck, 5 Johnson...