Rott v. Goehring
| Decision Date | 17 March 1916 |
| Citation | 157 N.W. 294,33 N.D. 413 |
| Parties | EVA ROTT v. HELEN GOEHRING |
| Court | North Dakota Supreme Court |
Appeal from District Court of Logan County, Nuessle, J.
From a judgment in plaintiff's favor, defendant appeals.
Affirmed.
Curtis & Curtis and H. P. Remington, for appellant.
The complaint does not charge adultery or abandonment. His affections may have been alienated, but that is not a substantive cause of action; it is merely an aggravation of damages, for the loss of consortium. Neville v Gile, 174 Mass. 305, 54 N.E. 841; Bigaouette v Paulet, 134 Mass. 123, 45 Am. Rep. 307; Evans v O'Connor, 174 Mass. 287, 75 Am. St. Rep. 316, 54 N.E. 557; Lellis v. Lambert, 24 Ont. App. Rep. 653; Webber v. Benbow, 211 Mass. 366, 97 N.E. 758.
In such cases, the actionable wrong is the abandonment of the wife by the husband, from the improper influences of the defendant. Mere ineffectual attempt to alienate does not constitute actionable wrong. The question is, Did plaintiff's husband abandon her, and was this brought about by the wrongful acts of the defendant? King v. Hanson, 13 N.D. 85, 99 N.W. 1085; Humphrey v. Pope, 122 Cal 253, 54 P. 847; Codoni v. Donati, 6 Cal.App. 83, 91 P. 423; Foot v. Card, 58 Conn. 1, 6 L.R.A. 829, 18 Am. St. Rep. 258, 18 A. 1027.
At common law an action for mere alienation cannot be maintained. A complaint by a wife which charges no adultery, no procuring, enticing, or harboring or secreting, does not state a cause of action. Houghton v. Rice, 174 Mass. 366, 47 L.R.A. 310, 75 Am. St. Rep. 351, 54 N.E. 843.
The right of action must be based on the loss of consortium, "the right to the conjugal fellowship of the husband, to his society, his support, and aid in every conjugal relation." Evans v. O'Connor, 174 Mass. 287, 75 Am. St. Rep. 317, 75 N.W. 316; Comp. Laws 1913, §§ 4331, 4355, subdiv. 1.
A. B. Atkins and G. M. Gannon, W. S. Lauder of counsel, for respondent.
The ancient theory of both the law and society that the wife was inferior to the husband, and in such cases as the one here presented "could suffer no loss or injury," is but a legal fiction, and even that long since faded away, especially in this country. She stands in a position to-day, possessed of every right of vindication for wrongs, and may seek and have the aid of our courts upon every just cause. Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397; Foot v. Card, 58 Conn. 1, 6 L.R.A. 829, 18 Am. St. Rep. 258, 18 A. 1027; Haynes v. Nowlin, 28 Am. St. Rep. 213, and note, 129 Ind. 581, 29 N.E. 389; Seaver v. Adams, 66 N.H. 142, 49 Am. St. Rep. 597, 19 A. 776; Bennett v. Bennett, 116 N.Y. 584, 6 L.R.A. 553, 23 N.E. 17; Dodge v. Rush, 28 App. D. C. 149, 8 Ann. Cas. 671; Deitzman v. Mullin, 108 Ky. 610, 50 L. R. A. 808, 94 Am. St. Rep. 390, 57 S.W. 247; 1 Cooley, Torts, p. 478.
In this state women have been entirely emancipated. Comp. Laws 1913, §§ 4350, 4411.
"No one should suffer by the act of another." Code, § 8254.
"For every wrong there is a remedy." Code, §§ 4350, 7257; Bennett v. Bennett, 116 N.Y. 584, 6 L.R.A. 553, 23 N.E. 17.
The wife can prosecute actions and recover for herself. Dodge v. Rush, 28 App. D. C. 149, 8 Ann. Cas. 671.
The wife has an action for damages against another woman for committing adultery with her husband. Scott v. O'Brien, 129 Ky. 1, 16 L.R.A. (N.S.) 742, 130 Am. St. Rep. 419, 110 S.W. 260; Seaver v. Adams, 66 N.H. 142, 49 Am. St. Rep. 597, 19 A. 776; Clow v. Chapman, 125 Mo. 101, 26 L.R.A. 412, 28 S.W. 328, 46 Am. St. Rep. 468, and note 472; Foot v. Card, 58 Conn. 1, 6 L.R.A. 829, 18 Am. St. Rep. 258, 18 A. 1027; Haynes v. Nowlin, 129 Ind. 581, 14 L. R.A. 787, 28 Am. St. Rep. 213, 29 N.E. 389; Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397; Hart v. Knapp, 76 Conn. 135, 100 Am. St. Rep. 989, 55 A. 1021.
In its broad sense, "consortium" means the right of the wife to the fellowship, company, co-operation, loyalty, and aid of her husband in every conjugal relation. Bigaouette v. Paulet, 134 Mass. 123, 45 Am. Rep. 307; Jacobsen v. Siddal, 12 Ore. 280, 53 Am. Rep. 360, 7 P. 108; Crowell v. Truesdell, 67 A.D. 502, 73 N.Y.S. 1013; Long v. Booe, 106 Ala. 570, 17 So. 716; Lockwood v. Lockwood, 67 Minn. 476, 70 N.W. 784; Bester v. Betser, 186 Ill. 537, 52 L.R.A. 630, 78 Am. St. Rep. 303, 58 N.E. 249; Reading v. Gazzam, 200 Pa. 70, 49 A. 889; Seaver v. Adams, 66 N.H. 142, 49 Am. St. Rep. 597, 19 A. 776; Kelley v. New York, N. H. & H. R. Co. 168 Mass. 308, 38 L.R.A. 631, 60 Am. St. Rep. 397, 46 N.E. 1063.
With respect to property, contracts, and torts, the wife has the same capacity as before marriage. Comp. Laws 1913, § 4411; Jaynes v. Jaynes, 39 Hun, 40; Deitzman v. Mullin, 108 Ky. 610, 50 L.R.A. 808, 94 Am. St. Rep. 390, 57 S.W. 247; Warren v. Warren, 89 Mich. 123, 14 L.R.A. 545, 50 N.W. 842.
In this class of cases, it is not necessary to a recovery that the wife show actual abandonment, actual abduction, or adultery. The loss of consortium is the basis of her right to recover. Adams v. Main, 3 Ind.App. 232, 50 Am. St. Rep. 266, 29 N.E. 792; 1 Bishop, Marr. & Div. § 1361.
If the wife has suffered this loss, her right to redress is absolute; it cannot be made to depend upon any condition. Foot v. Card, 58 Conn. 1, 6 L.R.A. 829, 18 Am. St. Rep. 258, 18 A. 1027; Heermance v. James, 47 Barb. 120; Fratini v. Caslini, 66 Vt. 273, 29 A. 252, 44 Am. St. Rep. 843, and note 845.
Such a wrong is of great magnitude. Vollmer v. Stregge, 27 N.D. 589, 147 N.W. 797.
Proof of adultery or criminal conversation need not be by direct evidence; it may be by circumstantial evidence. 3 Rice, Ev. pp. 532, et seq.; 2 Greenl. Ev. 14th ed. §§ 40, et seq.; 21 Cyc. 1630, et seq. and notes.
The proof need not be beyond reasonable doubt. A preponderance is only necessary. Sieber v. Pettit, 200 Pa. 58, 49 A. 763; Reading v. Gazzam, 200 Pa. 70, 49 A. 889; State v. Leek, 152 Iowa 12, 130 N.W. 1062, and cases cited; State v. Baker, 146 Iowa 612, 125 N.W. 659; 1 Century Dig. § 31; Stackhouse v. Stackhouse, 88 Neb. 184, 129 N.W. 257; 14 Cyc. 693, et seq. and notes.
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,--§ 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, North Dakota, 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, wilfully, 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 wilfully 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 one 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.
Appellant's counsel assert that the action being solely for alienation of affections, and the proof disclosing that...
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