Rust v. Oltmer

• Decision Date: 17 June 1907
• Citation: 74 N.J.L. 802,67 A. 337
• Parties: RUST v. OLTMER.
• Court: New Jersey Supreme Court

67 A. 337

74 N.J.L. 802

RUST

v. OLTMER.

Court of Errors and Appeals of New Jersey.

June 17, 1907.

(Syllabus by the Court.)

Error to Supreme Court.

Action by John Rust against Christian Oltmer. Judgment for plaintiff, and defendant brings error. Reversed.

John J. Fallon, for plaintiff in error. Weller & Lichenstein, for defendant in error

REED, J. The declaration contained two counts. The first count charged that the defendant debauched and carnally knew the wife of the plaintiff, whereby the affections of the wife were alienated from her husband. The second count charged that the defendant maliciously enticed the plaintiff's wife away from him, intending to deprive the plaintiff of her society. Upon the trial the plaintiff was a witness. He testified to admissions made by his wife and conduct by her. This testimony was admitted without objection. For the defense the wife was sworn, and upon objection by defendant's counsel her testimony was restricted to the fact of her marriage with the plaintiff. To the exclusion of all other testimony by the trial court an exception was sealed. The trial judge in his charge restricted the right of recovery to the act of the defendant in committing adultery with the plaintiff's wife. The charge upon the second count was ignored.

Section 5 of the evidence act (P. L. 1900, p. 363) enacts that "in any trial or inquiry in any suit, action or proceeding in any court * * * the husband or wife of any person interested therein as a party or otherwise, shall be competent and compellable to give evidence, the same as other witnesses on behalf of any party to the suit, action or proceeding, provided that nothing herein shall render any husband or wife competent or compellable to give evidence for or against the other in any action for crim. con. except to prove the fact of marriage." As already stated, the first count of the declaration charged criminal conversation by the defendant with the plaintiff's wife. The second count did not charge crim. con., but merely charged the alienation of the affections of the wife from the husband. The two charges were distinct. The first involves an adulterous act between the defendant and the wife, and the second not Elliott on Ev. §§ 1651, 1651a; 1 Saunders on Pl. & Ev. 875; Winsmore v. Greenbeck, Willes, 577. It is thus perceived that, while the statute excluded the testimony of both husband and wife as to any fact except that of marriage in the cause of action set forth in the first count, it did not exclude such testimony in the cause of action set forth in the second count.

Supreme Court rule No. 17 provides that causes of action arising ex delicto, except replevin and ejectment, may be joined in the...