Servis v. . Servis

The jury and the Appellate Division have decided in favor of the plaintiff and I vote to affirm the judgment awarding her damages.

The story of the plaintiff's married life is a pitiful one, and if this judgment is to be reversed on the ground that she did not sustain the burden of proof, it will introduce into the law of this state the startling doctrine that a father, who is of opinion that his son, twenty years of age, has married beneath him socially, may deliberately set at defiance the obligations of the marriage contract, intervene between man and wife and prevent the founding of a home where the contracting parties had planned to live together in that unity which public policy dictates.

The jury were permitted to find, on conflicting evidence, that the father of the husband was the active, procuring cause of the abandonment of this wife. From the moment the father heard of this marriage, until the separation was finally accomplished, he threatened that he would prevent its full consummation, if possible.

A wife has the right to the conjugal society of her husband,consortium, and if it be willfully violated by a third person, she may maintain an action in her own name. (Bullock *Page 444 on Husband and Wife, 235; Jaynes v. Jaynes, 39 Hun, 40;Baker v. Baker, 16 Abb. N.C. 293, in which the opinion of MARTIN, J., is instructive.) This is, strictly speaking, a property right, the invasion of which she may resist. (Bennett v. Bennett, 116 N.Y. 584; cited with approval in Kujek v.Goldman, 150 N.Y. 176, 180.)

This plaintiff does not base her claim for recovery upon the fact that the husband's father expressed his disapproval of the marriage and permitted this son to live at home. The trial judge pointed out in his charge that it was only when a parent interfered between man and wife with an evil motive and to gratify his own taste that he was liable.

It is undoubtedly the law that the separation and abandonment brought about by the intervention of the parent must be wrongful.

The complaint in this action does not charge malice in express terms, but alleges a state of facts equivalent to it. Furthermore, whatever the defects in pleading, the evidence upon which the plaintiff rests her judgment came into the case without objection, so that defendant is deemed to have acquiesced in the issues as tried.

The plaintiff and defendant's son, Samuel, were married June 18th, 1897. The plaintiff testified that her husband wished the marriage kept secret for a time, as he stated the publication of it would make trouble for him at home. The wife acquiesced in this situation for nearly two years, she still filling the position of maid for the wife of Dr. Cary, and Samuel continued to live at home. The plaintiff told her mistress of the marriage and exhibited her marriage certificate. In March, 1899, the plaintiff, having in the interval vainly insisted on many occasions that the marriage should be made public, sent a registered letter to defendant, telling him of the marriage; this letter Samuel intercepted.

It appears from the testimony of Dr. Cary, in whose family the plaintiff resided, that shortly after the marriage, in October or November, 1897, he informed defendant of the fact, who said he did not believe it. The doctor told defendant *Page 445 that he knew plaintiff had her marriage certificate and that they were married in Buffalo "back in June." Defendant said, "I won't have it and I will do everything I can to stop it." Samuel, the husband, testified that just before May, 1899, he saw that "it had gone to the limit of keeping things secret and putting it off." Samuel further testified as follows: "There was a time when I agreed to live with her and there was a date partly set at which we would commence keeping house. The date was May, 1899. She wanted me to live with her the first of May and I wanted to wait until the 15th and she would not wait." Samuel also testified that he left home for the west just before May 1st.

The plaintiff swears that she went down to Geneseo, where defendant lived, on May 1st, 1899, with the avowed purpose of seeing Samuel and making him redeem his promise to live with her. She swears she went to defendant's house and saw him. "I told him I was Sam's wife and wanted to see him. Then he came up and said, `Sam had gone, went the Saturday night before.' That was all that was said that night." The next morning she met the defendant again and the conversation was resumed as to the marriage, as follows: "He (defendant) said he would give him anything to keephim from me and he gave him the horses to go away himself. He said he did not want his son to live with me. He said he would give him anything to keep him away from me. He said his son had gone west Saturday night before, but he did not say where. I said, `Sam had no money to go with.' He said, `he sold the horses.' I said, `They were not his to sell.' He said, `yes, I gave them to him so that he would have money to go away with.' He said he gave him money. He couldn't allow him to go away without any. He said he didn't want me for a daughter-in-law. He didn't want me and Sam should never live with me if he could doanything to keep him from me. He would give his son anything and everything he wanted. He would never have to work if he didn't live with me. He told me that in his own house and said that hehad said the same thing to my husband." *Page 446

This was evidence the jury had the right to believe, and in view of the fact that Samuel was thus sent off west with the active assistance of the defendant the Saturday before he was to begin living with his wife and eighteen months later was brought back to trial, it was sufficient to satisfy the jury that the defendant, in the light of his own admissions, originated the scheme, carried it out in disregard of the marriage contract, because he did not desire his son to live with a wife of whom he disapproved, not because there was anything against her moral character, for the record establishes the contrary, but for the reason she was beneath him in social position.

The record clearly shows that if any one was likely to suffer by this marriage, it was the wife rather than the husband.

It is true that this wife, separated from her husband against her will, conspired against by his father and with no one to assist her, was compelled to make out the best case she could, and while it was of necessity drawn from the "camp of the enemy," it was sufficient to satisfy a jury who were confronted by the witnesses, and the Appellate Division whose peculiar jurisdiction it is to look into the facts.

The appellant raises a question of law on the refusal of the trial judge to charge "that if the jury find from the evidence that at the time of the abandonment the plaintiff's husband had no affection for her, or that it had been previously alienated by other causes, that then and in that case the plaintiff is not entitled to recover."

This request to charge contains two distinct propositions of law: (1) If plaintiff's husband had no affection for her at the time of the abandonment there could be no recovery; (2) if at the time of the abandonment the husband's affection had been alienated by other causes there could be no recovery.

If either proposition involves legal error, or was covered by the main charge, then the request was properly denied, as it should have been divided in order to secure a proper ruling. As to the first proposition, it is manifestly erroneous. A defendant who deprives a wife of the right to the conjugal *Page 447 society of her husband, of consortium, of a home and all that it implies, may not measure the degree of affection that existed when the wrong was inflicted. The right to shelter, support and protection of a husband's name and presence is property. As to the second proposition, it is answered by the familiar rule that the trial judge is not required to charge an abstract proposition that is covered by the main charge. In this case the charge was full, fair and covered the precise point under consideration. The trial judge, speaking of plaintiff's burden of proof, said: "She is bound to satisfy you by a preponderance of all the evidence in the case that these defendants are responsible, that her husband was alienated and that he was induced to leave her and abandon her by their active interference, and that she in that respect has sustained a loss, and it is for that loss she asks a verdict at your hands. If she has satisfied you in that way, that they are liable and she has sustained any loss, then she is entitled to be compensated for the loss in money." This charge covers both alienation of affection and abandonment, and the request to charge the two abstract propositions was properly denied as covered by the main charge, and as multifarious.

The judgment should be affirmed.

GRAY, O'BRIEN, HAIGHT and VANN, JJ., concur with PARKER, Ch. J.; MARTIN, J., concurs with BARTLETT, J.

Judgment reversed, etc.