Yundt v. Hartrunft

• Decision Date: 30 April 1866
• Citation: 41 Ill. 9,1866 WL 4528
• Parties: ALLEN C. YUNDTv.ABRAHAM HARTRUNFT.
• Court: Illinois Supreme Court

41 Ill. 9

1866 WL 4528 (Ill.)

ALLEN C. YUNDT

v.ABRAHAM HARTRUNFT.

Supreme Court of Illinois.

April Term, 1866.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Kane county.

This was an action of trespass vi et armis, brought by Abraham Hartrunft, in the Superior Court of Chicago, against Allen C. Yundt. The declaration counts for the seduction of plaintiff's wife by defendant. The plea of not guilty was filed. Afterward the venue was changed to the Kane Circuit Court.

A trial was had by the court and jury, which resulted in a verdict against defendant, and the jury assessed the damages at the sum of $5,000. A motion for a new trial was entered, but was overruled by the court, and judgment was rendered upon the verdict. Defendant brings the case to this court on appeal, and asks a reversal on various grounds. The facts necessary to an understanding of the case appear in the opinion of the court.

Messrs. MILLER, VAN ARMAN & LEWIS, for the appellant.

Messrs. HURD, BOOTH & KREAMER, for the appellee.

MR. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This was an action of trespass vi et armis, commenced in the Superior Court of Chicago by appellee against appellant, for seducing and debauching his wife. The case was taken by a change of venue to the Kane Circuit Court. A trial was afterward had in that court by a jury, which resulted in a verdict in favor of appellee for the sum of $5,000. A motion for a new trial was entered, which was overruled by the court, and judgment rendered on the verdict. And the cause is brought to this court by appeal, and various errors are assigned upon the record. But appellant's counsel have confined their argument principally to the overruling of the motion for a new trial and the questions involved in that motion.

It is first urged that the court below erred in permitting appellee to read the affidavit made by appellant for a change of venue. We are entirely at a loss to see that this affidavit was, for any purpose, evidence on the trial; and why it should have been offered or admitted, we do not perceive. It did not, so far as we can see, tend in any degree to prove any issue in the case. Being wholly irrelevant, it should have been rejected. If not calculated to prejudice the jury, it was calculated to incumber the issues and the record with irrelevant matter.

It appears from the evidence, that appellee and his wife were married, in the State of Pennsylvania, some time previous to their removal to this State. It also appears, that he went to California, some time in the year 1862, leaving his wife and children in Illinois. He returned to this State in the summer of 1864. The criminal conversation with appellee's wife is alleged to have taken place while he was absent in California. Appellant urges that appellee and his wife had permanently separated, and that appellee had deserted her. This was a question for the determination of the jury from all of the evidence in the case; and, inasmuch as the case will be submitted to another jury, it would be improper for us to express any opinion on the weight of evidence on this question.

It was again insisted, that, even if appellant was guilty, the suit should have been brought during the life-time of appellee's wife, to enable him to recover; that, by delaying to bring the suit until after her death, a recovery was thereby barred. If appellant seduced the wife of appellee, his right of recovery became complete at the time the injury was inflicted; and, the right to recover damages commensurate to the injury having then vested, we are aware of no principle of law which divested the right by the death of his wife. Had he or appellant died, then the suit could not have been sustained by or against their representatives; but we are aware of no case which holds, that the death of the wife defeats a recovery by the husband for damages he has sustained by debauching her, or that a father or a master is barred from recovering for debauching a daughter or servant because they had subsequently died but before a recovery was had. This suit is not for the injury to the wife, like a battery or slander of the wife.

In this class of cases, the loss of services may be the alleged injury, but the injury to the character of the family is the real ground of recovery when the cause of action relates to the wife or daughter. The degradation which ensues, the distress and mental anguish which necessarily follow, are the real causes of recovery. It has not been the policy of the law to confine the recovery by the injured party to the precise amount of money which he has proved he has lost by the deprivation of labor ensuing from the injury. But the law has, in a more just spirit, allowed a recovery for injury to family reputation and anguish growing out of the injury. Nor is it true, that, because appellee was absent from home, he therefore could have sustained no loss of service by reason of his wife being debauched. He had a right to her services in the nurture of his children, as well as a virtuous example to them by her. He had the right to the teachings of a virtuous and not of a depraved mother to his children. If he intrusted their care to a virtuous and undefiled mother, and appellant corrupted and debased her, he thereby became liable to appellee for the neglect to her family and her example to her children. And the circumstance that his wife died did not deprive him of his right of recovery.

We now come to consider the instructions given for appellee, and to which objections were made. The first instruction is this: “If the jury find the marriage and cohabitation of plaintiff with his wife, and the seduction of the latter by defendant, then they must find a verdict for plaintiff.” Appellant was urging as a defense the abandonment of his wife by appellee, and that question was before the jury to be determined on the evidence. This instruction ignored that question. It should have been modified so as to have left it to the jury for determination. But the second and third of his instructions explain the first so that it could not have misled the jury. The judgment would not be reversed, therefore, because this instruction was not modified.

It is also insisted that the following instructions given for appellee were erroneous, and must have misled the jury:

6. “If the jury believe from the evidence that the defendant visited the plaintiff's wife in the day-time and evenings during the spring and summer before she went to Pennsylvania, and that such visits were so frequent as to cause remark, and that he accompanied her to Chicago, stopped at the same hotel with her, and visited her in her room at the hotel at an unusual hour of the night, and after her children had retired, and kissed her on her departure for the East, and that upon her return he met her in Chicago, and upon his so meeting her he kissed her, waited upon her to the cars, this is evidence from which the jury may find the improper and criminal intimacv of the defendant.” 6 1/2. “The jury are further instructed, that, if they believe from the evidence that the defendant Yundt visited the plaintiff's wife in the evening or night after her return from Pennsylvania, and while she lived in the Ackerman house, and while he was so visiting her she went up stairs and brought down a bed, and upon her retiring carried her hoop skirts in her hand, this is evidence from which the jury may find improper and criminal intimacy of the defendant with the plaintiff's wife.”

8. “And...