Servis v. Servis

• Decision Date: 18 November 1902
• Citation: 172 N.Y. 438,65 N.E. 270
• Parties: SERVIS v. SERVIS.
• Court: New York Court of Appeals Court of Appeals

172 N.Y. 438

65 N.E. 270

SERVIS

v.SERVIS.

Court of Appeals of New York.

Nov. 18, 1902.

Appeal from supreme court, appellate division, Fourth department.

Action by Elizabeth H. Servis against George Servis and another. From a judgment of the appellate division (71 N. Y. Supp. 1148) affirming a judgment in favor of plaintiff, entered on a verdict, George Servis appeals. Reversed.

Bartlett and Martin, JJ., dissenting.

Theodore H. Lord and Edward P. Coyne, for appellant.

Edward J. Rosenau and John F. McGee, for respondent.

PARKER, C. J.

A substantial judgment has been rendered in this case upon a verdict determining that defendants alienated from the plaintiff the affections of her husband, their son, Samuel H. Servis. The appellate division reversed as to the defendant Matilda Servis, granting a new trial on the ground that the verdict was contrary to the evidence, but affirmed by a divided court as to the other defendant.

Some time in the year 1895 plaintiff and Samuel were introduced at the house of a neighbor. He accompanied her home, and obtained her consent to see her frequently. Afterward they met occasionally, but under circumstances calculated not to attract the attention of the neighbors, until June 18, 1897, when they were privately married in Buffalo. A considerable portion of the day had been devoted to horse-races and drinking by the young man, who was taking a short vacation from school. They spent all of that night together. On all other occasions before and after the marriage when they met it was only for a brief period, and at such places and under such circumstances as would be likely to prevent their meetings becoming known to relatives or acquaintances. This continued until nearly two years after the marriage, when plaintiff began to insist that her husband should acknowledge their relations and support her. Her threats and entreaties seem to have been alike unavailing, and so, on March 23, 1899, she wrote to his father, as she had threatened, informing him of the marriage. The father testified he never received her letter. Samuel testified his father was ill at the time, and that he (Samuel) went to the post office, got the registered letter, recognized plaintiff's hand-writing in the address, opened the letter, read it, concluded that it was not prudent that his father should see it, and that his father did not see it or learn of its contents. About the last of April Samuel went away, and he wrote plaintiff informing her of the fact. He resided in Colorado until this action was tried, when he appeared as a witness for defendants, testifying emphatically that they had not in anywise contributed toward his decision to go away, nor persuaded him to go. Appellant testified they had not attempted to alienate the affections of their son from his wife, saying he never had any conversation with his son in reference to his marriage. The evidence relied upon to satisfy the court and jury, notwithstanding this positive evidence of both appellant and his son, that neither defendant had in anywise participated in any effort looking to an abandonment of plaintiff by the son, consists of alleged declarations made by defendants after April 26, 1899, when Samuel left the state with no apparent intention of returning.

Plaintiff testified that on May 1, 1899, she called on defendants, and that her conversation with appellant was in part as follows: ‘Mr. Servis * * * said: ‘I never approved of it, and you know it would be better for me that his son should leave me now than to leave me later.’ * * * He said he did not want his son to live with me. He said he would give him anything to keep him from me. He said his son had gone West the Saturday night before, but he didn't say where. I said: ‘Sam had no money to go away with.’ He said: ‘He sold the horses. * * * I gave them to him so that he would have money to go away with.’ He said he gave him money. He could not allow him to go away without any. He said he didn't want me for a daughter-in-law. He said he didn't want me, and Sam should never live with me if he could do anything to keep him from me. He said he would give his son anything and everything he wanted. He would never have to work if he didn't live with me. He told me that in his own house, and said that he had said the same thing to my husband.' Now, it is true appellant denies ever having had any such conversation with plaintiff, and asserts that he never threatened his son, or urged him in any way to refuse to live with plaintiff. In that the son corroborates him. But the jury were at liberty to believe the testimony of plaintiff instead of that of appellant and his son, and the verdict shows they did so. From her testimony it must be said that there was some evidence tending to show that appellant used some influence against plaintiff after he knew of the marriage, and perhaps there may be found in the record some evidence tending to support an inference of fact that appellant contributed toward alienating from plaintiff her husband's affections. Therefore we should affirm the judgment did we not think that, under all the facts presented by this record, the court should have charged the jury, as the defendants' counsel requested, ‘that if the jury find from the evidence that, at the time of the abandonment, the plaintiff's husband had no affection for her, or that it had been previously alienated by other causes, that then and in that case the plaintiff is not entitled to recover.’ That the request presented, under the circumstances in this case, a proposition which the defendants were entitled to have charged, cannot be questioned.

There is in this record very little evidence of affection upon the part of either party. If it ever existed, both parties have been cautious in giving expression to it. This, considered with the fact of the secrecy always insisted upon by the husband, and observed by the wife, down to the time almost of the going away of Samuel, and the testimony of himself and his father, together with that of the attorney with whom Samuel consulted, strongly tended to show that plaintiff's husband did not hold her in affectionate regard, and would have warranted the jury in finding that, if he ever had any affection for her, it had been alienated in some other way than by threats made or inducements offered or deceit practiced by appellant. The court, in refusing to charge as requested, gave no other reason than that conveyed in the following phrase: ‘I will not modify my charge on that subject.’ If the main charge sufficiently covered the subject, the court was entirely justified in refusing any modification, but, after a careful reading of it, we are not able to reach the conclusion that the idea conveyed in that request was presented at all to the minds of the jury. The court did properly charge the jury that the burden was upon plaintiff to establish that her husband was alienated from and induced to leave her by the active interference of the defendants; but the jury may very well have come to the conclusion, from the alleged declarations of appellant that he had given him money to go away with, and horses to sell for that purpose, that the burden resting upon the plaintiff was met, whereas it may well have been, as testified to by appellant, that, Samuel having made up his mind to go, his father simply furnished him the means. Of the absolute right of a father to furnish money for the support of a son who has, for reasons good or bad, determined to abandon his wife, there is of course no doubt,-a right that he may exercise without being subjected to respond in damages to the deserted wife, provided its exercise be not part of a general scheme having for its object the alienation of the husband's affection for his wife and her abandonment by him. Hence it was important in a case such as this that the jury should have their minds drawn sharply to the claim of appellant that, if there ever was any affection existing between these parties, it was alienated by other causes before he even knew of the marriage, and, if found by them to be well grounded, that there could be no recovery. We think the exception was well taken and calls for a reversal of the judgment.

The judgment should be reversed and new trial granted, with costs to abide event.

BARTLETT, J. (dissenting).

The jury and the appellate division have decided in favor of the plaintiff, and I vote to affirm the judgment awarding her damages.

The story of the plaintiff's married life is a pitiful one, and, if his judgment is to be reversed on the ground that she did not sustain the burden of proof, it will...