Roberts v. Jacobs
| Citation | 156 N.W. 589,37 S.D. 27 |
| Decision Date | 04 March 1916 |
| Docket Number | 3853. [*] |
| Parties | ROBERTS v. JACOBS. |
| Court | Supreme Court of South Dakota |
Appeal from Circuit Court, Brown County; Thomas L. Bouck, Judge.
Action by Ed. Roberts against John Jacobs. From a judgment for plaintiff, defendant appeals. Affirmed.
Geo. H Fletcher and Ezra L. Baker, both of Aberdeen, for appellant.
Amos N Goodman, of Aberdeen, and S. A. Cochrane, of Columbia, for respondent.
The complaint herein purported to allege two causes of action (1) That on May 10, 1911, and on divers days after that day defendant, "intending to injure plaintiff, and to deprive him of the comfort, society, aid, and assistance of his wife, *** willfully *** debauched and carnally knew" the wife of plaintiff without his consent or privity. That thereby the affection of said wife for plaintiff "was impaired, alienated, and destroyed, and *** plaintiff was deprived of the comfort, society, aid, and assistance, which he otherwise would have had from his said wife, and has suffered great distress of body and mind, to his great damage in the sum of $10,000." (2) That on or about August 8, 1911, with the like intent and result as above set forth, defendant "maliciously entered the said home of plaintiff and his said wife, and then and there maliciously, wrongfully, and with the promise of reward, enticed the said *** wife into a bedroom with the intent to then and there debauch and carnally know her, *** against the consent of this plaintiff." No exemplary damages were sought. Verdict and judgment entered in the sum of $4,000. From such judgment and an order denying a new trial, this appeal was taken.
Appellant assigned several errors of law and also the insufficiency of the evidence to support the verdict. We will disregard all such of his assignments as have not been argued and discussed in his brief. This leaves for our consideration his contentions that:
Appellant failed to demur to, or to object to the introduction of evidence in support of, the second cause of action. At the close of all the evidence, he asked for a directed verdict against respondent on the whole case, including in his motion therefor several grounds, one of which was:
"That the second cause of action stated in the complaint does not state facts sufficient to constitute a cause of action."
There was no motion asking a direction of verdict as to this one cause of action or asking the court to take such cause of action from the jury, and, inasmuch as there was ample evidence to go to the jury on the other cause of action, the court clearly did not err in overruling the motion for directed verdict.
The evidence in support of the second alleged cause of action having been received without objection, we should look to such evidence, rather than to the complaint, to determine whether there was proper support for the court's instructions. Proof of what occurred on the date referred to in the said second alleged cause of action was found in the testimony of both respondent and his wife. Such testimony was not positive and certain as regards whether the wrongful relations of appellant and respondent's wife had, at that particular time, extended any further than their retiring to bed together with the intent and purpose of indulging in sexual intercourse; but it was positive and certain as to such fact. Believing the testimony of these two witnesses the jury must of necessity have concluded that the plans of these wrongdoers were either fulfilled on that occasion, or that they were frustrated by respondent's unexpected appearance upon the scene at the very moment when the act of copulation was about to take place. We refuse to subscribe to any rule of law which would recognize as an actionable wrong the consummated act of coition, but would leave to the wronged party no right of recovery for the wrong done him, where, by fortunate chance, he appeared on the scene of action a moment before the wrongdoer had consummated his villainous purpose and thus prevented such consummation. Can it be successfully contended that the person of a woman has not been defiled, that she has not lost her chastity, that the sacred right of marital consortium has not been impaired, that she has not been seduced, when some man has, through seductive influences, induced her to disregard her marriage vows to such an extent that, as testified to in this case, she voluntarily goes with him to a bedroom, where they disrobe and retire to a bed with the fixed purpose of indulging his sexual passion; and can it be so successfully contended simply because their purpose was frustrated through the unexpected appearance of the woman's husband? Surely, while the wrong done the husband may differ in degree from the wrong intended, it did not differ in kind, and we apprehend that, to the mind of any right-thinking man or woman, the difference in degree would scarcely be perceptible. In Cooley on Torts (3d Ed.), the learned author, after noting that the common-law remedies for a violation of the husband's marital rights are "all grounded upon or permeated with the ideas which mark their origin in a rough and uncultivated society," says, at...
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