Ward v. Thompson

• Decision Date: 01 June 1911
• Citation: 131 N.W. 1006,146 Wis. 376
• Parties: WARD v. THOMPSON.
• Court: Wisconsin Supreme Court

146 Wis. 376

131 N.W. 1006

WARD

v.THOMPSON.

Supreme Court of Wisconsin.

June 1, 1911.

Appeal from Circuit Court, Grant County; George Clementson, Judge.

Action by Lee Ward against John Thompson. From a judgment granting insufficient relief, plaintiff appeals. Affirmed.

Action for criminal conversation. The complaint alleged that on and between the 15th day of December, 1908, and the 8th day of April, 1909, while plaintiff was living with his wife, Minnie Ward, the defendant did at divers times in Wisconsin and at the city of McGregor, Iowa, with the intent to injure plaintiff and to deprive him of the comfort, aid, society, and assistance of his wife, willfully and maliciously seduce and carnally know her, without his privity or consent, to his damage in the sum of $25,000. The answer admitted that the defendant and a woman by the name of Minnie Ward, who was living with the plaintiff and claimed to be his wife, did have sexual intercourse with each other at the city of McGregor, Iowa, on a single occasion, in the month of April, 1909, but alleged that said intercourse was had by the procurement and with the connivance and consent of the plaintiff. The court directed the jury to find for the plaintiff, and submitted to them the question of damages only. They returned a verdict for $300 compensatory damages and nothing for punitory damages. From the judgment entered thereon the plaintiff appealed.J. S. Earll and Chas. H. Schweizer, for appellant.

George B. Clementson, for respondent.

VINJE, J. (after stating the facts as above).

At the time of the trial the plaintiff was about 35 years of age. In 1899 he married one Tillie Kuntzman, at Minneapolis, Minn., begot a child with her, and, after three weeks of married life, left her. In 1901 she obtained a divorce from him, and he has never paid anything toward her support nor that of his child. In 1903, at Gas City, Ind., he married a Mrs. Miller, the wife debauched by the defendant. In 1909 he secured a divorce from his second wife. Minnie Ward, the wife of plaintiff, was about 30 years old at the time of the trial. Her maiden name was Ora M. Williamson. In 1901 she married Arthur Miller, lived with him about five months, and left him. In 1902 she secured a divorce from her husband, and the following year she married the plaintiff. In 1909 he secured a divorce from her, and since then she married a man by the name of Kraer. Such in brief is the matrimonial history of plaintiff and his wife up to the time of the trial. After they were married in 1903 they lived for a short time at Gas City and Fowlerton, Ind., then removed to Wisconsin, where they lived for about six weeks, then went to St. Louis, Mo., residing there about eight months, and then returned to Indiana for a short time. They afterwards lived for about two years at Grand Rapids, Mich., namely, from about November, 1904, to the fall of 1906. They then removed to Bridgeport, Wis., where they resided a little over a year. In 1908 they rented the defendant's farm and kept house thereon from March, 1908, until April, 1909, when they separated, Mrs. Ward returning to Indiana. The evidence shows that plaintiff was a frequent visitor at the Miller home during the last three or four months that Mrs. Miller lived with her husband, and there seems to be some ground for the claim that he was instrumental in causing her to leave her husband.

These facts, briefly stated, as to the marriages and divorces of plaintiff and his wife, and their roving life while they lived together, have a direct bearing upon the alleged errors in the admission of evidence and upon the remarks of the court excepted to. It should also be borne in mind that the only question at issue in the case was that of damages.

[1][2] The guilt of defendant was admitted in the answer, and the jury were instructed to find for the plaintiff. Hence it may well be that considerable of the evidence received would be inadmissible to prove guilt, and that its admission on that issue, were one in the case, would be prejudicial error, yet its reception in mitigation of damages may not be error at all, or at most harmless error. In such cases, where the guilt is admitted, the evidence in mitigation of damages may properly take a wide range. A number of questions enter into the consideration as to what sum of damages should be assessed. Among such questions are these: What is the moral attitude of the plaintiff towards the marriage tie? Does he regard it as a sacred, binding tie, or does it rest but lightly upon him? Does he respect the sacredness of that tie between others, or is he ready to trespass upon it if opportunity offers? The same questions apply equally to his wife for a double reason. In the first place, they have a direct bearing upon her value as a wife to plaintiff, and, in the second place, they also have a direct bearing upon the quantum of guilt of the defendant in seducing her--a vital issue as to punitory damages.

[3] So, also, the fact as to whether or not the married life of plaintiff and his wife was a happy one is at issue. Lee v. Hammond, 114 Wis. 550, 90 N. W. 1073.

In the light of these general principles, and always bearing in mind that the evidence was introduced upon the question of damages only, and not upon that of guilt, we will briefly consider some of the errors relied upon to reverse the judgment.

[4] It is argued that it was error to compel plaintiff upon cross-examination to testify concerning his marriage with, and divorce from, Tillie Kuntzman prior to his marriage with Mrs. Miller, and as to the length of time he lived with such former wife, as to whether or not he abandoned her, and other facts in relation to his married life with, and separation from, such former wife. Plaintiff, upon direct examination, had testified in a general way as to his life previous to his marriage with Mrs. Miller. Such being the fact, it cannot be claimed that the court erred in permitting cross-examination as to his previous marriage and the manner in which it was terminated. Such evidence tended in some degree to indicate plaintiff's attitude toward the marriage tie. In cases of this kind injury to the husband's feelings forms the basis of damages, and the extent of such injury can in some degree be ascertained from evidence relating to the moral and mental make-up of the plaintiff and his previous conduct relative to the marriage relation.

[5] Moreover, the cross-examination of a party testifying in his own behalf can take a wide range before prejudicial error can be predicated thereon. Schultz v. C. & N. W. Ry. Co., 67 Wis. 616, 31 N. W. 321, 58 Am. Rep. 881.

It is further urged that it was error to receive in evidence portions of depositions of several persons relating to the character and reputation of Minnie Ward prior to the time she became the wife of plaintiff, and dating back as far as the year 1900....