Puth v. Zimbleman

• Decision Date: 27 October 1896
• Citation: 68 N.W. 895,99 Iowa 641
• Parties: JOHN PUTH, Appellee, v. J. L. ZIMBLEMAN, Executor of the Estate of E. W. MCFARLAND, Deceased, Appellant
• Court: Iowa Supreme Court

68 N.W. 895

99 Iowa 641

JOHN PUTH, Appellee, v. J. L. ZIMBLEMAN, Executor of the Estate of E. W. MCFARLAND, Deceased, Appellant

Supreme Court of Iowa, Des Moines

October 27, 1896

Appeal from Boone District Court.--HON. S. M. WEAVER, Judge.

THIS is an action originally commenced by plaintiff against E. W McFarland, to recover damages for alienating the affections of his wife, and for criminal conversation with her some time during the year 1894. The case was tried to a jury, resulting in a verdict and judgment for plaintiff, in the sum of one thousand five hundred dollars. The defendant appealed. After the appeal was taken, McFarland died, and his executor was substituted as a party defendant.

Affirmed.

Dyer & Stevens for appellant.

Jordan & Brockett and E. F. Baker for appellee.

OPINION

DEEMER, J.

The petition is in two counts, one for the alienation of the affections of plaintiff's wife, and the other for seducing and debauching her. The defense is a general denial. Upon the trial, plaintiff was permitted to introduce two letters, known as Exhibits A and B, over the objections of the defendant. The first letter, bearing date August 7, 1894 written by plaintiff's wife, while at Tama City, to McFarland, and addressed to him at Boone, Iowa is as follows: "Tama City, Iowa August 7, 1894. Friend Wallie: I haven't anything else to do this morning, so I thought I had better write to you. I am having a nice time, but it is so warm. The baby is as well as she can be, and they all go wild over her. Some one is pulling and carrying her around all the time. I have had the headache nearly every day since I have been here. I have not had any beer, and you bet I miss it, too, and our moonlight lunches. We will make up for lost time. We were up to Toledo last Friday night; that is two miles and a half from here. They have electric cars run from here there. I got a letter from Puth Saturday night. He says he feels awful bad. Why don't you give him that medicine of yours. Have you been up home with him since I left? He asked me when I was coming home. I have been gone only a week. Wouldn't that kill you? He would die if I would stay a month. He was telling me what he cooked, and what a time he had. I guess I will be obliged to come before the 15th if I want to see Dr. Rowe. If it was not for that, I would not come. I am going out in the country to-morrow, to stay awhile with one of his cousins. I think I will feel a little lonesome out there, but nothing will do but I must go. They have just thirteen dogs, and mean as the dickens. I had a picnic last Saturday evening. The Marshalltown band was down here. Mamie and I just had a time. She said she was going to tell my old man on me. I will let you know when I come home, and if you want to come down you can. So good-bye. Now, you answer my letter, and tear this up. Yours truly, Katherine." The second was written to her husband from the same place, the day before the first. It need not be set out, for it contains nothing but family affairs, neighborhood gossip, and town news. It has no reference to McFarland except this: "Haven't you and Wallie been up to the house together? Don't have that country girl there too much." It gives evidence of the ordinary wifely regard and affection, and discloses nothing more than we have stated, except that the writer had a great liking for beer. The record discloses the following facts with reference to this first letter. Plaintiff, his wife, and defendant McFarland all lived in the city of Boone during the time material to our inquiries. Some time previous to the thirtieth day of July, 1894, these parties were together at plaintiff's house, and during the course of the conversation, plaintiff's wife said to McFarland, that she would like to go on a visit to Tama City, whereupon McFarland remarked, that he had some business there. Mrs. Puth went to Tama on the thirtieth day of July. On the eighth day of August, near the time for the departure of the train for Tama, McFarland came to Plaintiff's shop, and asked him to go with him to the latter place, saying that he had some business there, and must go right away. Plaintiff immediately left his shop, and went with McFarland to Tama. After they arrived there, all parties met, and drank together, and finally McFarland suggested that he had business at Toledo, the county seat of Tama county. A team was procured, and Mrs. Puth proceeded to prepare for the journey. While she was dressing, McFarland remarked, that he was ready to go, and take her to Toledo. The drive was deferred, for some reason, until afternoon, whereupon defendant's testator and plaintiff's wife started on the journey alone. There was testimony to the effect, that McFarland said to Mrs. Puth, that he had received her letter. Plaintiff found the letter about a dressing case in McFarland's room, in Boone. When he found the letter he was much disturbed, and asked McFarland to telegraph for his wife, who was then at Tama, that he was sick. Plaintiff took the letter home, and a day or two afterwards he went to McFarland's room, and asked him if his wife ever came there, or ever wrote him a letter. McFarland denied it, and attempted to make plaintiff believe that his wife was faithful to him. But it is evident that defendant became suspicious of discovery, for he visited plaintiff, offered him money, and endeavored to induce him to commence a divorce proceeding. Defendant at no time denied the receipt of the letter, and did not contradict the testimony of the wife that he admitted to her the receipt of the letter.

The exact point made by appellant's counsel is that this letter, written after the time it is claimed defendant had intercourse with plaintiff's wife, is inadmissible, under the well-known rule that in criminal conversation, actions correspondence and conversations with the wife, indicative of her feelings towards defendant, in order to be admissible, must have occurred prior to the alleged misconduct on her part, so that there may be no ground for imputing collusion. The rule is a just one, and, where applicable, ought to be rigidly enforced. But it must be remembered that this is an action not only for criminal conversation, but for alienating the wife's affections. The latter cause of action is a continuing one, going on from day to day, and generally growing worse with time. The methods of the despoiler are subtle, insidious, and crafty. He wins the affections slowly and stealthily, and by degrees gradually accomplishes his purpose. It seems to us that it is entirely proper to show the feelings of the wife towards her paramour during the whole period of alienation. Vide Edgell v. Francis (Mich.) (66 Mich. 303, 33 N.W. 501). It is not important that the wife wrote a letter to her husband the day before, in which she expressed love and affection for him. While such a letter, considered in connection with the one in question, might, under certain circumstances, be evidence of collusion, yet it is well known that a wife who has been allured from the paths of rectitude is very profuse in her protestations of fidelity. There is nothing else in the case tending to show collusion, and we think the letter was properly admitted as a declaration of the wife tending to show her feelings towards the defendant. But, aside from this, the letter was admissible, just as a declaration made by her to the defendant, explanatory of their conduct, would have been. It explained and accounted for the visit defendant made her, and was an invitation to the defendant to call upon her. The invitation was accepted, and, as a part of this transaction, it was clearly admissible. There...