Murrell v. Culver

Boyd, C. J., delivered the opinion of the- Cdurt. The appellant, recovered a judgment for one hundred, dollars -against the appellee, and, not being satisfied with the amount, took an appeal. There are three counts in the-declaration. The first alleges that the defendant debauched and carnally knew the plaintiff’s wife; the second, that the defendant debauched and carnally knew the plaintiff’s wife, and thereby the affection of his wife for him has been alienated and destroyed and he has wholly lost and been deprived of her society and assistance; and the third alleges that the ³⁵¹ defendant had alienated the affections of his wife and wrongr fully and maliciously induced her to leave and abandon his home.

There are three hills of exception in the record, the first and second presenting rulings on the admissibility of evidence and the third embracing those on the prayers. The trial court granted the third, fourth, fifth, seventh, twelfth, thirteenth and fifteenth prayers offered by the defendant and (he plaintiff objected generally and filed special exceptions to each o>f them. Mrs. Culver, the wife of the defendant, was called by the defendant. She had testified without objection that they lived on a farm, and in reply to a question, who owned it, said, “Gordy and myself.

We worked it from the time we were married up to the present date. I am the mother of four children during that time, and I have worked hard morning and night, and at times with one in my arms.” By “'Gordv” she meant her husband. She also said that they had been married nineteen years the following Saturday, and her husband had bargained to buy the farm about, six months before they were married, and Mr. Miller held a mortgage on it. The plaintiff obj ected to> each of nine questions asked her, and the first bill of exceptions presented the rulings of the trial court overruling those objections.

Those questions elicited answers to the effect that her lmsband paid, when he bought the farm, “just enough to hold the mortgage,” the amount of which she did not remember; that the mortgage had been paid by “his and my hardship,” that she contributed to pay the mortgage by work on the farm; that she had “worked from the lioe to the binder” ; that she was working when her children were being raised and worked to the present time. On being asked, “How were you able to work on the farm and raise your children at the same time?” she said, “There were about twenty months in the first two and twenty-four months difference in the last two., and i put a box on the machinery and carried the one with me I was working with.” ³⁵² There could have been but one object in going into such detail about the mortgage and the wife’s work on the farm— to affect the jury in assessing the damages, if the plaintiff recovered. The wife testified that she and her husband were still living on the farm. The title of record to it is not shown.

Although she said, in answer to the question, who owned the farm, “Gordy and myself,” she later stated what we referred to above, and said, when asked how much he paid on it, that she could not tell exactly the amount. So whether the record title was in the two, and if so, whether they were tenants in common, or tenants by the entireties, does not appear. Nor can we be certain whether she simply meant that they owned it together, by reason of the work that she did on it. But we can have no doubt that it was error to admit such testimony, and we cannot hold that the error was not injurious and therefore not reversible.

The evidence of klrs. Culver, where she spoke of her working on the farm in the first part of her testimony, might well have been objected to, but the part which was objected to went beyond that and was not harmless, by reason of what had already been said without objection. We also considered the effect of including so many questions and answers in one bill of exceptions, and, while it is not to be encouraged, and under some circumstances we have strongly expressed our disapproval of the practice, all these questions and answers related to the same thing. The twelfth, thirteenth and fourteenth of themselves would not have been material, but showing that the mortgage had been paid off, “by his and my hardship,” and then going into detail as to that hardship and the character of her work, were injurious and did constitute reversible error.

So, following what we did in Frick v. State, 128 kid. 122, where many of our decisions on this subject are referred to, we have not felt that we should decline to consider this first exception, especially as the consideration of either of the questions in it would result in the same conclusion we have reached on all of them. In addition to ³⁵³ that, tlio ruling in the second bill of exceptions, which was clearly erroneous, was based on the testimony in the first. That witness testified that he lived about a mile from Mr. and Mrs. Culver, that he had heard her testimony and heard her say that she had worked hard on that farm, and was permitted to answer the question, “Is that true?” And he answered, “Yes.” Upon what theory that testimony was allowed is not shown. The suggestion of the appellee, that it is always admissible in such cases to prove the standing and financial condition of the parties, certainly does not authorize the wife of a party being sued, to show what part she took in acquiring or paying for the property.

There is not even any impeachment of her evidence on that subject (although we do not mean to say it would have been competent, if there had been), and, while ordinarily, such a question and answer might be harmless, it was very objectionable in this case for the reasons that we have already given in connection with our consideration of the first bill of exceptions., and there was reversible error. It was well said, in Ickes v. Ickes, 237 Pa. 582, that, “in a case of this kind, where human sentiment, is apt to play a leading part, the trial judge should be most cautions not to admit evidence which might have a tendency to bias the jury against either side, unless clearly relevant and competent.” The defendant’s fifth, twelfth and fifteenth prayers are most, important, but we will first consider the others, which were granted. His fourth instruction to the jury, that they should consider in mitigation of damages (provided they believed that the evidence established them) the following facts: that the plaintiff’s wife and the defendant were equally guilty, and that the plaintiff’s wife’s fall was, due to her own licentiousness, was specially excepted to on the ground that there was no such evidence. In 13 R. C. L. 1489, par. 539, it is said: “It is immaterial, according to> the better view, the question of damages not being involved, that the defendant was led into the adulterous intercourse through the acts and ³⁵⁴ practices of the plaintiff’s wife, instead of being himself the seducer.” But on page 1495, paragraph 546 of that volume, the author states that: “Where a husband sues for the seduction of his wife, it is well recognized that the fact that she was not seduced, as the term is ordinarily understood, but that she herself was the enticer, or seductress, that is^ that her fall was due to her own licentiousness and not the result of the blandishments and enticements of the defendant, is a most material fact for consideration in estimating the damages to be awarded the husband.

Such a rule is the natural dictate of common sense, since most certainly the husband cannot be deemed to have been injured in law to the same extent as if bis wife had been otherwise a virtuous woman.” We have no criticism of that statement of the law as there announced, but it should be very carefully applied in any ease. ' There is not any evidence whatever, worthy of consideration, of the plaintiff’s wife being immoral, or misbehaving herself, excepting with the defendant. The defendant’s statements, made in the presence of his brothers, his own son, Mr. Schwartz, the brother of the plaintiff’s wife, and the plaintiff and his wife on September 15, 1920, when they met to inquire into the truth of what the defendant’s brothers had told the plaintiff the day before, would seem to be strong, if not conclusive evidence, that the defendant was really the most guilty party of the two. When confronted by the charges he said, in the presence of his wife, his son and others: “I love her better than any woman on earth,” and made other statements of a like character. The plaintiff took some money out of his pocket, laid it on the seat of the carriage in which they were sitting and said: “Lena, if this is so, go some-wheres out of my sight, but if it is not so*, you be home when I come home from my work tonight.” He got out of the carriage and went towards the farm on which he was building a house in which he and his wife were to live, but not where he was then living.' Her brother left the other peisons and followed the plaintiff, but soon came back and found the defend ³⁵⁵ ant, his wife and son and his sister, Mrs. Murrell.

He asked them, addressing his sister and the defendant, what they were going to do, and said to his sister: “He (plaintiff) wants you to get out of his sight if these things are true.” The defendant said: “We are not going to tell yon what we are going to do until we have a private talk with each other.” He made that assertion several times, and Mrs. Culver, her son and Mr. Schwartz went to the house, leaving the defendant and plaintiff’s wife hy themselves in the road. The defendant called him (Schwartz), and he went to them and again asked them what they were going to do, saying to his sister, “Lena, you go home with me and perhaps we can reconcile this matter and forget the past and try to start a new life over again.” The defendant said: “Ho, I love her better than any woman on earth and I expect to stick to her to the last.” Schwartz’s sister would not answer at first, hut he tried to persuade her to go home with him and finally she said she wanted to go to her sister in New York, and the defendant said he was going south. Later he said again to his sister, “Lena, will you go back to Irving, if he will take you back?” She shook her head, “Don’t know.” He told her that was no answer, and he asked the defendant if he would go hack to his wife, and he said, “Ho, my God, I love her better than any woman on earth and I expect to stick to her to the last.” Tt resulted in Mr. Schwartz taking his sister to his home, after going by the plaintiff’s house to get some clothes, and after dinner he took her to the train, bought her a ticket to New York, and she left, apparently for that city. On the 21st of that month, the defendant called on a lady who rented rooms in Atlanta, Georgia, and rented two rooms for himself and his wife, telling the landlady that his wife was detained in New York.

In about ten days plaintiff’s wife joined the defendant there and they lived together in two rooms, representing themselves to he man and wife, by the name of Collins, until Hovember, when the defendant left her ³⁵⁶ there, after paying rent for the room for a week longer. She left there, but it was not shown where she is. The defendant is living with his wife again, but neither he nor the plaintiff’s ■wife appeared at the trial. We have thus at