Rott v. Goehring

• Decision Date: 17 March 1916
• Parties: ROTT v. GOEHRING.
• Court: North Dakota Supreme Court

33 N.D. 413

157 N.W. 294

ROTT

v.GOEHRING.

Supreme Court of North Dakota.

March 17, 1916.

Syllabus by the Court.

An action by a married woman against an unmarried woman for alienation of her husband's affections will lie, even though plaintiff's husband has not completely and in a literal sense abandoned her.

If through defendant's alleged wrongful acts the plaintiff's husband was induced and persuaded to deprive plaintiff of the conjugal affection and society which the marriage contract entitled her to enjoy, she has a right to recover for the injury thus inflicted.

Section 4355, Comp. Laws 1913, which prescribes what is forbidden by the rights of personal relation, was not intended to prescribe the only rules of conduct as to the violation of the wife's conjugal rights.

Defendant will not be exonerated from all liability merely because the plaintiff's husband may have been more blamable than defendant.

Held, further, following King v. Hanson, 13 N. D. 85, 99 N. W. 1085, that subdivision 1 of said section gives to the wife the same protection as subdivision 2 gives to the husband.

The fact that plaintiff was estranged from her husband prior to his illicit relations with defendant will not defeat the action.

Whether an action will lie by a married woman for criminal conversation, and also whether such a cause of action is alleged in the complaint, not decided for reasons stated.

Direct proof of illicit relations is not required, circumstantial evidence being sufficient.

Additional Syllabus by Editorial Staff.

“Consortium,” the loss of which is the gist of actions for alienation of affections, means something more than mere physical presence in the home; it includes society, companionship, conjugal affections, fellowship, and assistance.

Appeal from District Court, Logan County; Nuessle, Judge.

Action by Eva Rott against Helen Goehring. From judgment for plaintiff, defendant appeals. Affirmed.Curtis & Curtis, of Lisbon, and H. P. Remington, of Ashley, for appellant. G. M. Gannon, of Ashley, and A. B. Atkins, of Napoleon (W. S. Lauder, of Wahpeton, of counsel), for respondent.

FISK, C. J.

Plaintiff had judgment in the court below for $1,500 and costs, and defendant has appealed, alleging insufficiency of the evidence and errors of law.

Counsel differ as to the nature of the action, appellant's counsel stating that it is for alienation of affections alone, while respondent's counsel assert that it is both for alienation of affections and for criminal conversation. In our judgment it matters little which is technically correct, for in this jurisdiction forms of action are expressly abolished. Section 7355, Comp. Laws. And if the facts alleged in the complaint, when properly established, entitle plaintiff to any relief under the law, she may recover.

The complaint alleges:

“(1) That the plaintiff, Eva Rott, is now and for seven years last past has been the wife of one Jacob J. Rott.

(2) That beginning about January 1, 1912, and continuing and including the months of April, May, June, and July, 1914, and while this plaintiff was living, cohabiting with and being supported by her husband, Jacob J. Rott, at Napoleon, N. D., and was so living with him happily as his wedded wife, and enjoying his affections, support, protection, and respect, and the defendant well knowing said Jacob Rott to be the husband of this plaintiff, and wrongfully intending to injure this plaintiff and deprive her of said husband's protection, society, aid, and support, willfully, wickedly, and maliciously gained the affection of said Jacob J. Rott, and has enticed him to have carnal intercourse with her, and has sought to persuade him and entice him by protestations of love and otherwise to leave this plaintiff without support, and to go and live with defendant.

(3) That thereafter and at various times during the above-mentioned months, the defendant has continued her unlawful and wrongful intercourse with the said Jacob J. Rott, and is continuing and unlawfully and maliciously trying to entice the said Jacob J. Rott to desert this plaintiff, and to leave her without means of support or protection, and to go away with defendant, and has willfully and maliciously debauched him, all of which has been against the plaintiff's will.

(4) That by reason of the premises the said Jacob J. Rott is no longer a dutiful husband, and his affection and regard for plaintiff have been destroyed, and plaintiff has been and still is wrongfully deprived by the defendant of the affection and regard of her husband, and the happiness and benefits which otherwise she would have received at his hands; that the plaintiff and her husband are the parents of three children, all of whom are alive, and plaintiff is also suffering great distress of mind and body, and has suffered damage in the amount of five thousand dollars ($5,000).”

The answer admits paragraph 1 of the complaint, but denies generally all other allegations.

It will be observed that the very pith and marrow of the complaint is that the defendant alienated the husband's conjugal affections from the wife by persuading and inducing him to deny his conjugal society to her and by enticing him to lavish on her his adulterous affections and society, and that she succeeded in repeatedly enticing and persuading him to have carnal intercourse with her.

Do these facts give rise to a cause of action to the wife? All must agree that defendant's conduct if established as alleged constituted a most flagrant violation of and injury to the inherent marital rights of the plaintiff, and the question is as to whether the law affords her any redress for the detriment thus suffered by her.

[1] Appellant's counsel assert that the action being solely for alienation of affections and the proof disclosing that there was no actual abandonment of the wife by her husband, the action will not lie, and they cite and confidently rely upon the case of King v. Hanson, 13 N. D. 85, 99 N. W. 1085. We do not deem this case an authority in appellant's favor on this point. The question as to what constitutes abandonment and the necessity of proving the same was not up for decision in that case, and this for the obvious reason that it was expressly conceded that an actual physical abandonment had taken place, and the great contention between counsel was whether it took place in Wisconsin or in Minnesota or North Dakota, appellant's counsel contending that it occurred in the former state, and therefore the action would not lie because there was no actionable wrong under the holdings of the Wisconsin court. But this court expressly held that under the undisputed evidence the tort was consummated in Minnesota.

[2][3][4] Conceding therefore, for the sake of argument, that the action at bar is one solely for alienation of affections, as appellant's counsel contend, we are to decide whether the fact that the plaintiff's husband did not actually and in the literal sense of the term abandon her will operate to defeat her right to recover. We are clear that it will not. To hold otherwise would, in our opinion, be a travesty on justice. To hold that the flagrant wrongs inflicted upon plaintiff's marital rights cannot be redressed in the courts, unless the wrongdoer has actually succeeded in destroying the home by causing an actual abandonment thereof by the husband, is contrary not only to common sense, but to our notions of natural justice. If counsel's contention is correct, what becomes of the maxims in the jurisprudence of this state “no one should suffer by the act of another,” and that “for every wrong there is a remedy?” Wherever there is a valuable right and an infringement thereof causing damage, which is susceptible of admeasurement, the law will afford the injured person complete reparation, as far as possible.

The question here presented being one of first impression in this jurisdiction, we are free to adopt such rule as commends itself to our best judgment, and regardless of what the courts may have held in other places, we unhesitatingly decide that the sane, sensible, and sound rule is that announced by the Connecticut court in Foot v. Card, 58 Conn. 1, 18 Atl. 1027, 6 L. R. A. 829, 18 Am. St. Rep. 258, from which we quote:

“It is the contention of the defendant that the admission by the plaintiff that she and her husband are still living together is an admission that she now has and enjoys all that the marriage contract can, or intended to, secure to her; and that she has neither in law nor in fact suffered any injury. But this admission is to be considered in the light of that made by the defendant, namely, that she has, during the last 15 years, lived in continual adulterous intercourse with the husband-an intercourse...