Tice v. Mandel

• Decision Date: 22 March 1956
• Docket Number: No. 7558,7558
• Citation: 76 N.W.2d 124
• Parties: Norman TICE, Plaintiff and Respondent, v. Irvin W. MANDEL, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 124

76 N.W.2d 124

Norman TICE, Plaintiff and Respondent, v. Irvin W. MANDEL, Defendant and Appellant.

No. 7558.

Supreme Court of North Dakota.

March 22, 1956.

Syllabus by the Court.

1. A cause of action for alienation of affections consists of three elements: (1) wrongful conduct of the defendant; (2) loss of affections or consortium; and (3) a causal connection between such conduct and loss.

2. An action for alienation of affections will lie even though the plaintiff has not abandoned his spouse.

3. The courts are quite unanimous in holding that the gist of an action for alienation of affections is the loss of consortium, and they are also quite generally agreed that 'consortium means something more than mere physical presence in the home.'

4. Malice as that term is used in an action for alienation of affections does not necessarily mean that which must proceed from a spiteful, malignant, or revengeful disposition--it means no more than the intentional doing of a wrongful act without just cause or excuse.

5. The question of whether the acts of the defendant alienated the affections of the plaintiff's wife under all the facts and circumstances was properly submitted to the jury and it was for them to determine under all the evidence what damages, if any, were to be awarded to the plaintiff.

6. If the defendant desired more explicit or comprehensive instructions upon the nature of exemplary damages, and when allowable, than were given by the court, they should have been presented to the court with a request that they be given.

7. The object of examining witnesses is to elicit the truth, and if the court deems it essential to the discovery of the truth that the witnesses be examined out of the hearing of each other, the court may so order. But this is not a matter of right. It rests in the discretion of the trial court.

8. The refusal of the trial court to grant a request for sequestration of witnesses is not arbitrary where no particular reason exists for the same and the denial does not constitute an abuse of discretion.

9. The plaintiff in an action for alienation of affections may recover for all direct and proximate losses occasioned by the tort of the defendant.

10. In determining whether the verdict of a jury in an action for alienation of affections is excessive, since there is no standard by which compensation in such cases may be measured, the court will not substitute its judgment for the judgment of the jury, however much it may be dissatisfied with the verdict. It, in this respect, is limited to granting another trial or giving the plaintiff an option to accept a lesser sum than the verdict awards or to submit to a new trial. In determining whether a verdict is excessive the court may consider the reduced purchasing and earning power of the dollar as compared with the period preceding World War II.

11. In an action for alienation of affections where exemplary damages may be awarded, the plaintiff may introduce evidence of the wealth of the defendant.

12. The object of requiring a witness to take an oath is to affect his conscience and thus compel him to speak the truth, and to lay him open for punishment for perjury in case he willfully falsifies. But where a person is called merely to exhibit a movie film already in evidence, taken by a party to the action, and gives no testimony on the issue or issues in the case, it is not necessary that such person be put under oath.

13. In civil actions counsel may properly comment on the failure of a litigant present at trial to testify to an issue of fact as well as the failure of party present to contradict material testimony introduced.

14. Counsel has great latitude in argument to the jury, subject, however, to regulation and control of the court. Where the argument is not made a part of the record and a proper ruling is made on the only objection made thereto, it must be presumed that the argument was within the record and proper inferences to be drawn therefrom.

15. Errors assigned but not argued will be deemed abandoned.

Henry G. Owen, Samuel Rubin, Grand Forks, and Lashkowitz & Lashkowitz, Fargo, for defendant-appellant.

Robert A. Alphson, Grand Forks, for plaintiff-respondent.

JOHNSON, Judge.

This is an action for alienation of affections. The plaintiff recovered judgment against the defendant for $5,000 compensatory damages, and $10,000 exemplary damages. A motion for judgment notwithstanding the verdict or in the alternative for a new trial was made by the defendant. The trial court entered an order, dated August 10, 1955, granting the defendant a new trial, unless the plaintiff, within twenty days, consented to a reduction of the exemplary damages to $2,500. This reduction was accepted and the judgment was entered in favor of the plaintiff and against the defendant for $7,500. Thereafter the trial court entered an order denying the motion for a new trial. The defendant appeals to this court from the judgment and the order denying defendant's motion for a new trial.

The complaint in this action is so similar to the complaint set forth in the decision of this court in the case of Rott v. Goehring, 33 N.D. 413, 157 N.W. 294, L.R.A.1916E, 1086, as to appear to have been patterned thereon.

The defendant interposed an answer in which he neither admits nor denies some of the allegations of the complaint and puts the plaintiff on his proof in that connection. Otherwise he denies generally the allegations of the complaint and asserts that the plaintiff and his wife, Jennet Tice, were in collusion to entrap him into a compromising situation by use of a clever trick, scheme, and device in the nature of a conspiracy whereby the plaintiff would be in a position to sue the defendant for a large sum of money.

The appellant sets forth forty-nine specifications of error, five specifications of the insufficiency of the evidence, to sustain the verdict, seven specifications of fact that he says are 'conclusively established and not established', and twelve ultimate specifications of error. He argues these matters under seven separate headings:

1. Nature of action for alienation of affections.

2. Intent and motive.

3. Insufficiency of the evidence.

4. Exemplary damages.

5. Sequestration of witnesses.

6. Excessive damages.

7. Swearing of witnesses.

We will deal with the matters argued and presented in the order enumerated.

Appellant's first contention is that alienation of affections and criminal conversation are separate and distinct wrongs. He sets forth numerous citations of authority from other jurisdictions in support of this argument. We need not consider these authorities as the law has been established in the case of Rott v. Goehring, supra, in this state. The appellant made the same contentions at the opening of this trial in the district court at which time the appellant objected to the selection of a jury on the ground that the complaint in the action set forth more than one cause of action. The trial court construed the complaint and ruled that it was solely based upon alienation of affections. In Rott v. Goehring, supra [33 N.D. 413, 157 N.W. 295], this court said:

'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, Section 7355, Comp.Laws (this is now Section 32-0109 NDRC 1943). And if the facts alleged in the complaint, when properly established, entitle plaintiff to any relief under the law, she may recover.'

After setting forth the contents of the complaint the court further observed:

'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.'

This also is the gist of the complaint in the action at bar.

The main burden of the appellant's argument rests on the fact that the association of the defendant with the plaintiff's wife did not cause an abandonment of the marriage relationship of the plaintiff and his wife, nor disrupt it in any manner; that during the entire period she worked for the Mandel Department Store and the Mandel Fur Company, at which time the incidents complained of took place, they lived together as husband and wife, and were living together at the time of the trial, and that, therefore, there was no basis for an action of alienation of affections.

'A cause of action for alienation of affections consists of three elements; (1) Wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) a causal connection between such conduct and loss.' 27 Am.Jur., Husband and Wife, Section 523, p. 125.

In this state it is established that an action for alienation of affections will lie even though the plaintiff has not abandoned his spouse. The rule was announced in Rott v. Goehring, supra, as follows:

'An action by a married woman against an unmarried woman for alienation of her husband's affections will lie, even though plaintiff's husband has not completely and in a literal sense abandoned her.'

In this connection the court said:

'Conceding therefore, for the sake of argument, that the action at bar is one solely for alienation of affections, as appellant's counsel contend, we are to decide whether the fact that the plaintiff's husband did not actually and in the literal sense of the term abandon her will operate to defeat her right to recover. We are clear that it will not. To hold otherwise would, in our opinion, be a travesty on justice. To...