Vogel v. Sylvester

• Decision Date: 01 August 1961
• Citation: 174 A.2d 122,96 A.L.R.2d 893,148 Conn. 666
• Parties: , 96 A.L.R.2d 893 Frank N. VOGEL v. William G. SYLVESTER et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 122

174 A.2d 122

148 Conn. 666, 96 A.L.R.2d 893

Frank N. VOGEL v. William G. SYLVESTER et al.

Supreme Court of Errors of Connecticut.

Aug. 1, 1961.

Robert B. Seidman, Norwalk, with whom, on the brief, was Sidney Vogel, Norwalk, for appellants (defendants).

Morgan P. Ames, Stamford, for appellee (plaintiff).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and BORDON, JJ.

KING, Associate Justice.

Under the first count, the plaintiff sought damages from the named defendant and his mother for the alienation of the affections of the plaintiff's former wife. In a second count, against the named defendant only, damages were sought for seduction and criminal conversation. Alienation of affections flowing from the criminal conversation was alleged in the second count under the rule of cases such as Valentine v. Pollak, 95 Conn. 556, 561, 111 A. 869, and Maggay v. Nikitko, 117 Conn. 206, 211, 167 A. 816. A single verdict form was used, and a verdict was returned under the first count against both defendants in the amount of $42,500 and under the second count against the named defendant in the amount of $5000.

Both defendants assign error in two rulings on evidence and in the denial of their motion to set aside the verdict 'because the damages are excessive.' We consider the latter assignment first. Apparently it refers to the verdict under each count, although that on the second count, as already noted, ran against the named defendant only. Since no assignment of error is addressed to the charge, we assume that it was adequate and legally correct. Lisa v. Yale University, 122 Conn. 646, 649, 191 A. 346; Harris v. Clinton, 142 Conn. 204, 209, 112 A.2d 885; Butler v. Steck, 146 Conn. 114, 116, 148 A.2d 246.

The court's action in refusing to set aside the verdict must be tested by the narrative of the evidence, not by the finding. Pierce v. Albanese, 144 Conn. 241, 256, 129 A.2d 606; Palmieri v. Macero, 146 Conn. 705, 707, 155 A.2d 750. The defendants' appendix is somewhat less complete than that of the plaintiff, but we consider both. Practice Book §§ 445-448. '[D]enial by the trial court of a motion to set aside a verdict claimed to be excessive is entitled to weighty consideration. * * * The issue * * * is not whether this court would have awarded more or less. It is whether the total amount of the verdict falls within the necessarily flexible limits of fair and reasonable compensation or is so large as to offend the sense of justice and compel a conclusion that the jury were influenced by partiality, prejudice or mistake.' Gorczyca v. New York, N. H. & H. R. Co., 141 Conn. 701, 703, 109 A.2d 589, 591; Prizio v. Penachio, 146 Conn. 452, 457, 152 A.2d 507.

In support of their claim that the verdict was excessive, the defendants rely particularly on the fact that some two months after the named defendant, hereinafter referred to as the defendant, had taken the plaintiff's wife to his home, a marital settlement was arranged between the plaintiff and his wife by which the plaintiff paid her $1500 and she in turn instituted a divorce action in Alabama, obtained a valid decree of divorce and shortly thereafter married the defendant. The defendants quite properly do not claim that the fact of the divorce, as alleged in the third special defense, was a bar to the institution of an action either for alienation of affections or for criminal conversation occurring prior to the divorce. Restatement, 3 Torts § 689 & Comments a, b; Prettyman v. Williamson, 1 Pennewill, Del., 224, 239, 39 A. 731 (alienation of affections); Wales v. Minor, 89 Ind. 118, 121 (criminal conversation); see Fredericks v. Thatcher, 140 Conn. 605, 607, 102 A.2d 882; note, 68 A.L.R. 560, 581. Rather, the defendants claim that as matter of law damages could not be awarded under either count for any loss or impairment of the right of consortium suffered after the date of the divorce decree. This claim appears to find support in Prettyman v. Williamson, supra. Since in the present case, as it was pleaded, recovery might have been had for some loss or impairment of the consortium under each count, the defendants' claim would apply to each, even though the same loss or impairment could not be compensated for twice. Maggay v. Nikitko, 117 Conn. 206, 213, 167 A. 816. We must assume that the charge correctly cautioned the jury on this point. Ibid.

Cases concerning the effect of a divorce on the right or extent of recovery in an action of alienation of affections or of criminal conversation are collected in an annotation in 20 A.L.R. 943. The conclusion of the annotator, which is sound, is: 'It is generally held that a spouse against whom a divorce has been granted may maintain as action for alienation of affections or for criminal conversation occurring prior to the divorce, the decree [of divorce] not being res judicata with respect to the plaintiff's cause of action, and not operating as an estoppel by judgment.' Ibid. A valid divorce judgment is a judgment in rem and 'is binding on all the world as to the existence of a status which is the subject of the action,' that is, the status of being unmarried upon the adjudication of divorce. Restatement, Judgments § 74(1) & comment c. But the judgment of divorce does not establish any one of the facts or grounds on which it was based except as between the persons who actually litigated the question of the existence of that fact or ground. Luick v. Arends, 21 N.D. 614, 623, 132 N.W. 353. Here, since neither defendant in this action was a party or privy to the divorce action, the plaintiff in this action did not litigate with either defendant the existence of any fact on which the decree of divorce was based. Such a fact could not be res judicata in this action, because of the difference in the parties. Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 198, 91 A.2d 778. Or, put in another way, the divorce decree could not operate as an estoppel by judgment as to any such fact. See Sargent & Co. v. New Haven Steamboat Co., 65 Conn. 116, 126, 31 A. 543; Restatement, Judgments § 74(2) & comment c. In other words, although the fact of a valid divorce was admissible and conclusively established the status of the plaintiff and his former wife as no longer married, it went no further; it did not establish, nor even tend to establish, any of the facts on the basis of which it was granted. ¹

The defendants claim that the mere fact that the parties were divorced is sufficient to preclude the allowance of any damages for loss or impairment of the consortium occurring after the date of the divorce. The usual rule is that future sufferings and disabilities may be a proper element of damages in an action of alienation of affections. Palladino v. Nardi, 133 Conn. 659, 664, 54 A.2d 265; Keyes v. Churchward, 135 Conn. 115, 118, 61 A.2d 668. The same rule would apply in an action of criminal conversation. Bryant v. Carrier, 214 N.C. 191, 195, 198 S.E. 619. The rule would apply here, even as to sufferings and disabilities subsequent to the divorce. It is contrary to the law to assume, as the defendants necessarily do in their claim, that the divorce decree establishes that it was granted, and the consortium lost, as a result of the present plaintiff's misconduct. As already pointed out, the divorce judgment, as such, is not even admissible for the purpose. Luick v. Arends, supra; Hostetter v. Green, 159 Ky. 611, 613, 167 S.W. 919, L.R.A.1915C, 870.

The effect of the fact of the divorce is limited to the issue of damages. Where, as here, the fact is specially pleaded, it may enhance them. 1 Harper & James, Torts, p. 615; Restatement, 3 Torts § 689, comment b. 'If * * * the alienation of affections is accompanied or followed by loss of services in the home, a separation or divorce, * * * such harms may be included by the jury in assessing the amount of damages recoverable.' Restatement, 3 Torts § 683, comment k; see Amellin v. Leone, 114 Conn. 478, 481, 159 A. 293, 294. This would be the case in the event that the divorce was a proximate consequence of the defendant's tort. On the other hand, it has been indicated that the fact of the divorce may mitigate damages. 42 C.J.S. Husband and Wife § 694, p. 349. In this connection, however, it should not be overlooked that under our law, as far as alienation of affections is concerned, 'even though it be shown that the wife has no affection for the husband, the defendant may still be liable if he prevents or interferes with the possibility of a reconciliation between them.' Amellin v. Leone, supra.

The jury might have found under either count or both, that the divorce was a proximate consequence of an alienation of affections and that the plaintiff's apparent acquiescence in it was a mere acceptance of the inevitable. Under these circumstances, the divorce, coupled with the marriage of the wife to the defendant, would establish that whatever impairment or destruction of the consortium had proximately resulted from the defendant's alienation of affections under either count was permanent and complete and that any possibility of a reconciliation was destroyed. Amellin v. Leone, supra, 114 Conn. 480, 159 A. 293. What, if any, merit the defendants' claim might have if the divorce could not have been found on the evidence to have been a proximate consequence of the defendant's tort is a matter which we are not called upon to decide.

The evidence was conflicting as to the extent of the affections of the plaintiff's wife for the plaintiff prior to her acquaintance with the defendant, and it thus became a question of fact for the jury. The jury could have found, as the verdict indicates they did, that the defendant's conscious misconduct was of a wanton, brazen and cruel type which increased the injury to the plaintiff's feelings. Keyes v. Churchward, 135 Conn. 115, 119, 61 A.2d 668. This evidence also warranted an allowance of punitive or exemplary damages against the...