Shedrick v. Lathrop

• Decision Date: 01 May 1934
• Citation: 172 A. 630,106 Vt. 311
• Parties: JOHN FRED SHEDRICK v. WILLIAM N. LATHROP
• Court: Vermont Supreme Court

172 A. 630

106 Vt. 311

JOHN FRED SHEDRICK v. WILLIAM N. LATHROP

Supreme Court of Vermont

May 1, 1934

February Term, 1934.

Husband and Wife---Alienation of Wife's Affections---Evidence---Question Involving Knowledge of Defendant as to Woman's Conviction of Adultery---Flight of Defendant to Another State to Escape Prosecution for Adultery as Evidence of Guilt---Harmless Error---Evidence of Unhappy Relations and Lack of Affection of Husband and Wife on Mitigation of Damages---Presumption as to Loss of Consortium from Proof of Adultery---Gist of Action for Alienation of Affections---Damages---Compensatory Damages---"Consortium"---Defendants' Insanity as No Defense To Compensatory Damages in Action for Alienation of Affections---Discretion of Jury as to Unliquidated Damages, Where There Is No Legal Measure Thereof---Sufficiency of Facts Not To Limit Recovery to Compensatory Damages---Jury Question---View of Evidence on Respondent's Motion To Set Aside Plaintiff's Verdict---Matters for Consideration on Question of Exemplary Damages---Amount of Exemplary Damages as Discretionary with Jury---Exemplary Damages as Allowable in Action for Alienation of Wife's Affections---Insufficiency of Facts To Show Verdict Excessive---Motion To Set Aside Verdict as against Weight of Evidence as Addressed to Legal Discretion of court.

1. In

ACTION OF TORT for alienation of affections of plaintiff's wife. Pleas, general denial, insanity, and statute of limitations. Trial by jury at the June Term, 1933, Windsor County Sherburne, J., presiding. Verdict for the plaintiff to recover $ 1,280, and judgment thereon. The defendant excepted. The opinion states the case.

Judgment affirmed.

Ernest E. Goodrich and Finn & Monti for the defendant.

Lawrence F. Edgerton for the plaintiff.

Present SLACK, MOULTON, and THOMPSON, JJ., and SHERMAN and STURTEVANT, Supr. JJ.

OPINION

SHERMAN

This is an action in tort brought to recover damages for the alienation of the affections of plaintiff's wife by adultery. The jury returned a verdict for the plaintiff. The defendant thereafter moved to set aside the verdict. This motion was overruled and exceptions taken by defendant. During the trial the defendant also had exceptions to the admissibility of certain evidence.

Plaintiff's evidence tended to show his marriage to wife in 1916, that they lived on a small farm with title thereto in wife's name upon which a house and barn had been built by their joint efforts, also their joint efforts had paid for an additional small piece of land with its title, likewise, in wife's name. There was no serious trouble between them and their relations were pleasant. Plaintiff worked on the farm and away from home part of the time, taking or sending his wages home. The wife helped with work on the farm. In 1926, the plaintiff was in a hospital. On returning home from this hospital, he found defendant with plaintiff's wife on this farm. He ordered the defendant to leave and was told by wife that not the defendant but plaintiff was going, that she was going to keep the defendant. Plaintiff left the next day.

In 1927, the defendant and plaintiff's wife went through a marriage ceremony in New Hampshire; thereafter, she went by the name of Mrs. Lathrop and they lived openly as husband and wife. Both were arrested for adultery in 1928. The wife was tried, convicted, and sentenced. At the time trial of defendant was started and before any evidence had been introduced, being on bail, the defendant (there, respondent) fled to New York. He testified that he believed himself better off there than in attendance upon his trial. After the wife was released from imprisonment, the defendant returned to her and they lived together until he was again arrested in 1930. Some three or four weeks after this arrest, defendant was sent to the State Hospital for the Insane, and later discharged therefrom. The defendant was the beneficiary of the income from a trust fund of about $ 40,000 and owned some real estate of small value. Doctor Green, called by the defendant, testified, in cross-examination, that defendant knew the difference between right and wrong at times, at least. Adultery was admitted by the defendant. He claimed he was insane and believed that the woman was not lawfully married to plaintiff but was lawfully married to himself. (This latter as bearing on the question of exemplary damages.)

Recovery was limited to acts committed within six years of the time suit was brought. The issue of insanity was submitted only on the question of exemplary damages.

Plaintiff's counsel asked defendant, in direct examination: "When you went back to the farm to live with Olga, in 1930, you knew she had been convicted of adultery with you, didn't you?"

Against the objection and exception that the record was the best evidence and was available, the defendant answered: "Yes, I knew she had been shut up." This question did not call for the fact of conviction, but for defendant's knowledge, and was material on the question of exemplary damages as bearing on defendant's belief that his marriage to plaintiff's wife was lawful.

In cross-examination of defendant by plaintiff's counsel, defendant was asked: "Where did you go?" (This had reference to the time he did not appear at his trial after it opened.) Subject to the objection and exception that it was incompetent and immaterial, the witness answered: "I went to the State of New York."

Flight of an accused is admissible as evidence of guilt. State v. Taylor, 70 Vt. 1, 12, 39 A. 447, 42 L.R.A. 673, 67 Am. St. Rep. 648; Underhill's Criminal Evidence (3rd ed.), § 203, and cases there cited. Whether the question was proper to show reason why defendant was not convicted (which was the offer made), it is unnecessary to decide because the evidence was otherwise admissible. Donovan v. Towle, 99 Vt. 464, 467, 134 A. 588. Its admission, in any event, was harmless, as adultery had been previously admitted by defendant.

In cross-examination, defendant further was asked: "When you were arrested in 1928, and appeared for trial, were you represented by counsel, did you have a lawyer?" And subject to the objection and exception that the court records were the best evidence, defendant answered: "I got a lawyer, after the, -- a fashion, but had very hard work to get a lawyer." Again defendant was asked: "When you came up for trial at the June term, 1928, did you or your attorney representing you, to your knowledge, make any claim of insanity?" Same objec- tion and exception as above. Defendant answered: "No." It had already appeared the defendant left the State after his trial had commenced but before any evidence had been introduced or any defense made. Whether in either instance this was error or not, it does not appear defendant was harmed.

The defendant filed a motion to set aside the verdict. Stated separately in the motion, the grounds briefed and here relied upon are in substance that the verdict was not warranted by the evidence; that it was contrary to, unsupported by, and against the weight of the evidence; that the amount thereof, $ 1,280, was excessive; and that by reason of the insanity of defendant exemplary damages were not recoverable.

The defendant in his brief contends that this motion should have been granted for the reasons that the plaintiff alienated his wife's affections before she met defendant; and that the plaintiff did not prove he had suffered any financial loss; and, further that the defendant was insane when he committed adultery with the plaintiff's wife, and, hence, could form no intent; and, therefore, that nominal damages at most could be recovered, and that exemplary damages should not have been awarded.

As to defendant's claim that because of the previously lost affections of the wife, the plaintiff would be entitled to only nominal damages, we...