Ruby v. Lawson

• Decision Date: 16 February 1918
• Docket Number: 31784
• Citation: 166 N.W. 481,182 Iowa 1156
• Parties: JACOB RUBY, Appellee, v. EDWARD LAWSON, Appellant
• Court: Iowa Supreme Court

166 N.W. 481

182 Iowa 1156

JACOB RUBY, Appellee, v. EDWARD LAWSON, Appellant

No. 31784

Supreme Court of Iowa, Des Moines

February 16, 1918

Appeal from Polk District Court.--W. H. MCHENRY, Judge.

THE defendant appeals from a judgment of $ 100 on a demand for $ 10,000 for having alienated the affections of plaintiff's wife.

Affirmed.

J. D Laws, for appellant.

Neiman & Neiman, for appellee.

LADD J. PRESTON, C. J., WEAVER, GAYNOR, and STEVENS, JJ., concur. SALINGER, J. (dissenting).

OPINION

LADD, J.

This is an action for criminal conversation, in which appellant contends that the evidence was insufficient to sustain the verdict, in that: (1) Plaintiff's wife was without affection for him, and therefore alienation was impossible; (2) no arts were practiced by defendant to alienate; and (3) no damages were proven.

Plaintiff was married to his wife October 31, 1896. There were born to them eight children. Until her acquaintance with defendant, they appear to have lived together happily, save that he had left her, two or three years previously, when living in Keokuk County, for several months, though with sufficient funds for the maintenance of the family. Upon arrest for wife desertion, he brought the entire family to Des Moines, where they have since resided. From August 22, 1914, they occupied the second story of defendant's house as tenants, and thereafter, defendant visited her frequently. This is not denied, nor is there conflict in the evidence as to defendant's having accompanied her "down town," to picture shows, to the potato patch to aid in hoeing, to another house, unoccupied, belonging to him, and treating her to candy, bananas, and apples, and at one time buying her a 98-cent hat, a 50-cent fascinator, and a 10-cent pair of stockings. Whether these gifts occurred before or subsequent to the first yielding to his embraces she is somewhat confused, though sure that he gave her as much as 50 cents after each of several indulgences. Moreover, she swore that defendant told her that he liked her "better than any woman he ever saw or ever would see. He said it more than once. I thought pretty well of him." True, she had previously declared that she "never did love Lawson;" that she "never thought very much of him;" that he "never took my affection, but I did his;" but later, she explained that, though she "did not love him," she "thought pretty well of him," "right smart of him," "had affection for him;" that she thought him "a nice man," "loved him some." From this, the jury might have found that he had ingratiated himself somewhat into the graces of this woman, and, as she declared,--though he denied,--indulged in sexual intercourse with more or less frequency during a period of about 18 months.

It may be that the arts said to have been practiced were somewhat crude, but the jury might have found them sufficient to lead this woman from virtue's way, and this was enough; and it is idle to argue that the evidence did not warrant a finding that defendant so intended. If she first yielded on the mere asking, this was after previous intimacy, and, as might have been found, the sort of flattery calculated to touch the feminine heart. Nor will the circumstance that they indulged in an outhouse or tent or vacant dwelling house, or even in a potato patch, obviate this; for these resorts cannot be said to be other than such persons are likely to choose.

The defendant was a common laborer and ditch digger, who, through industry and economy, had acquired the house in which plaintiff lived and another; and she, the wife and housekeeper of another common laborer, who, though industrious, could scarcely have earned enough to sustain his family.

That persons so situated might resort to such places for the gratification of their passions is not unlikely. Nor is the acceptance of presents as small as 50 cents by a woman in such circumstances to be regarded as peculiarly degrading, so much so as to brand her as a prostitute, or as having been without affections. Though to be denounced as immoral, such matters are not necessarily to be construed as indicating previous unchastity on the part of the woman. Even if the jury might have found her to have been of previous unchastity, there was no evidence of plaintiff's knowledge thereof or consent thereto; and therefore, proof thereof would not have constituted a defense. Stumm v. Hummel, 39 Iowa 478. It would have been a proper matter to consider in mitigation of damages (Smith v. Hockenberry, 138 Mich. 129 , and cases collected in 21 Cyc. 1632), had the matter been so pleaded. Frank v. Berry, 128 Iowa 223, 103 N.W. 358. The record contains no plea in mitigation, and her character in this respect was not in issue. Again, it is argued that plaintiff was unkind to his wife. If he spoke roughly to her, even to indulging in profanity, or joked coarsely at her expense, it is to be said, in extenuation, that both, apparently, were uneducated, and, neither through natural inclination nor environment, likely to exhibit much consideration or sentiment for the opposite sex. The attachment of each for the other may have been more physical than ethical,--more Plutonic than Platonic; but such as it was, might not lawfully be interfered with by defendant. She testified that she had always loved her husband, and, though this was in her peculiar way, proof of its quality, to be considered in measuring the damages, may not be interposed as a defense. The credibility of the several witnesses was for the determination of the jury, and its finding that defendant had induced violation of the marital obligations has such support in the evidence as to preclude interference with the verdict. Nor can it be said that the damages allowed ought to have been no more than nominal. The natural mortification and sense of shame usually incident to such wrongs would exact more than that. The consequent loss of comfort in the wife's society and the impairment of her affections, such as they were, ought not to be thus arbitrarily measured. As declared in Torre v. Summers, 2 Nott & McC. (S.C.) 267 at 270 (10 Am. Dec. 599):

"Would the seducer ask himself what damages would requite him, were he the injured husband, he would probably conclude that, as the brutal ravisher of a woman should be prepared to meet death, so the deliberate seducer of his neighbor's wife cannot look for less than pecuniary ruin; and he would then, too, admit that society should be as ready to recompense the injured husband and to punish his wrongdoer, as the immediate sufferer himself. Would he, when practicing arts of seduction, but ask himself what would be his feelings were his wife or his daughter defiled, even the gallant, gay 'Lothario, warm with the Tuscan grape and high in blood,' might pause, reflect, and say to himself, 'I will not for this end, and to her ruin, seek the weak Calista, to break the peace even of Horatio, though I love him not. I will not be the villain's spider of society, to watch where weakness strays, and to weave meshes on the way, that innocence may be entrapped. I will not be the reptile that unpitying sees the agony which follows from the agency of his snares.'"

Damages such as may be awarded can but inadequately compensate for such a wrong; and for this reason, courts rarely, if ever, interfere with the measure meted out by the jury. We discover no ground for regarding the verdict unsupported by the evidence, or excessive in the damages allowed.--Affirmed.

PRESTON, C. J., WEAVER, GAYNOR, and STEVENS, JJ., concur.

DISSENT BY: SALINGER

SALINGER J. (dissenting).

I. The first count of the petition alleges that, by various described arts employed by the defendant, he alienated an existing virtuous and mutual attachment, and plaintiff seeks to recover because this caused an entire loss of the companionship, society, and affection of the wife. The gravamen of the second count is that seduction deprived plaintiff of the society, affection, and services of the wife. The preliminary statement in the majority opinion is that we have an action for alienating the affections of plaintiff's wife. A further statement is that we have an action for criminal conversation. The defense is: (1) That the verdict is not sustained by the evidence; (2) that plaintiff's wife was without affection for him, wherefore, alienation was impossible; (3) no arts to alienate were practiced by defendant; (4) no damages were proved; (5) the verdict is excessive.

II. It will conduce to clarity to take these claims up in the order that I do. Was there any evidence from which a jury could find a seduction? This involves whether there was previous chastity. The statement of the majority that alleging want of chastity would have sustained a plea in mitigation, had one been interposed, does not dispose of this question. There can be no justified recovery for seduction where it appears there was no prior chastity; and it seems to be conceded there can be no recovery for seduction unless seductive arts were practiced, and obtained a yielding. In recognition of this the majority says the jury could find that defendant "had ingratiated himself into the graces of this woman, and had induced violation of the marital obligation;" that, while "the arts said to have been practiced were crude, the jury might have found them sufficient to lead this woman from virtue's ways, and this is enough;" and that it is idle to argue that the evidence did not warrant a finding "that defendant so intended." This brings me to inquiring whether there was chastity to destroy, and what seductive arts, crude or otherwise, calculated to lead a virtuous woman astray, are exhibited in the evidence. The majority asserts that, "if she first yielded on the mere...