DECISIONS

OF THE

COURT OF APPEALS OF KENTUCKY

APRIL TERM, 1908

CASE 1.—ACTION BY VIRGIE O'BRIEN AGAINST FLORENCE SCOTT FOR ALIENATING THE AFFECTIONS OF HER HUSBAND.-May 12.

Scott v. O'Brien

Appeal from Warren Circuit Court.

JOHN M. GALLOWAY, Circuit Judge.

Judgment for plaintiff, defendant appeals -- Reversed.

1. Husband and Wife-Criminal Conversation.-In an action for criminal conversation, adultery must be shown.

2. Same-Alienating Affections-Right of Action.-To support an action for alienating a husband's or wife's affections, the fact of the alienation must be established, together with the fact that the alienation was caused by defendant, and mere proof of abandonment by a husband of his wife and that he maintained improper relations with defendant is insufficient. 3. Same-Defenses.-In an action by a wife for alienation of her husband's affections, defendant may show that the alienation of the husband's affections was the voluntary act of the husband, and was not due to any wrongful or intentional act of defendant.

4. Same-Issues-Evidence-Admissibility.-Since in an action

Scott v. O'Brien.

by a wife for alienation of her husband's affections, she must show the alienation, and that the alienation was due to the intentional misconduct of defendant, defendant may, under the general denial, show that the alienation was the voluntary act of the husband, and was not due to any wrongful or intentional act of defendant.

5. Same. In an action by a wife for alienation of her husband affections, evidence of conversations between the husband and defendant prior to the time the husband abandoned his wife, showing that the husband first sought defendant and made love to her, and was himself the seducer, and that defendant endeavored to get him to leave her alone and return to his wife and children, and that the husband sought defendant for the purpose of getting her money, and not because of any affection for her, was admissible as a part of the res gestae, and the jury, in considering the weight to be given to the evidence, will consider the conversation in the light of defendant's conduct shown by other witnesses and in the light of all the circumstances of the case. Same. In an action by a wife for alienation of her husband's affections, evidence that the husband, shortly after defendant became a widow, remarked that defendant with her money would be a good catch, as well as his conversations and letters showing constant demands on his part for money, were admissible.

3

7. Same. In an action by a wife for alienation of her husband's affections, it was competent for defendant to prove her financial condition to show the motive of the husband in seeking defendant's society.

8.

Same-Damages. In an action by a wife for alienation of her husband's affections, the jury, on finding that defendant by her acts, intentionally alienated from plaintiff her husband's affections, should award to plaintiff such damages as will fairly compensate her for the injury resulting to her feelings for the loss of her husband's comfort and society, and for the loss of his support, except to the extent that he may by law be compelled to contribute to her support, and may, on finding that defendant's conduct in causing such alienation was wanton and malicious towards plaintiff, and with a design to humiliate her, award punitive damages. 9. Same. Where, in an action by a wife for alienation of her husband's affections, the defense was that the husband voluntarily left his wife, and sought defendant without any intentional or wrongful acts on her part, an instruction that, though the jury may believe that the husband transferred his affec

Scott v. O'Brien.

tions from plaintiff to defendant, yet if they further believe that plaintiff's husband alienated his own affections from plaintiff without any intentional misconduct of defendant, or that the alienation was occasioned by some other cause over which defendant had no control, or exercised no intentional influence, the verdict should be for defendant, properly submitted the issue.

SIMS, DU BOSE and RHODES for appellant.

POINTS AND AUTHORITIES.

1. It is a valid defense to a suit by a wife for the alienation of her husband's affections, that said husband voluntarily sought and endeavored to seduce defendant, without any direct intervention or effort on defendant's part. (15 Amer. and Eng. Enc. of Law, 865; 21 Cyc., 1621, 1st Enc. of Evidence, Ed. 1902, 760; 3rd Elliott on Evidence, 1643; Waldron v. Waldron, 45 Fed. Rep., 315; Ash v. Prunier, 105 Fed. Rep., 723; Also the New York cases found in notes to the above citations and on page 8 of brief. 2. Evidence to show that the plaintiff's husband, voluntarily sought and endeavored to seduce defendant, without any direct intervention or effort upon her part, may be introduced under a general traverse, without being pleaded as new matter. Civil Code Prac., 95; Newman's New Pleading and Practice, 424b, 543.) 3. The amended answer offered should have been permitted to be filed.

4. Evidence of the words, conduct, and demeanor of the plaintiff's husband, with and toward defendant, prior to the time of the abandonment complained of, is competent, though in the absence of the plaintiff. (Bailey v. Bailey, 63 N. W. Rep., 341; Price v. Price, 29 L. R. A., 150, 153; First Greenleaf on Evidence, 16th Ed., sec. 162d, p. 259; Brander on Evidence, p. 13, sec. B., also pages 325 and 326; 2nd Ed. on Evidence, sec. 347, p. 771; also section 350, p. 777; Rudd v. Rounds, 64 Vermont, 432.)

5. Evidence of the defendant's financial circumstances was competent as bearing upon the inducement or incitement to the plaintiff's husband in his endeavors to seduce the defendant. (Ash v. Prunier, 105 Fed. Rep., 724; Price v. Price, 29 L. R. A., 153).

L. P. TANNER for appellee.

POINTS AND AUTHORITIES.

1. That the statements of John O'Brien, the husband of appel

Scott v. O'Brien.

lee, not made in the presence of both parties, were incompetent as evidence in the trial of this case, in behalf of appellant. (Klien v. Klien, 31 Ky. Law Rep., 28; Leavell v. Leavell, et al., (Mo.) 99 N. W., 460; Westlake v. Westlake, 34 Ohio, 634, 32 Am. Rep., 397; Winsmore v. Greenbank, Willes 577; Manswarren v. Mason, 79 Hun, (N. Y. 572; Rice v. Rice, 104 Mich., 62 N. W., 833; Wigmore on Evidence, ; Higham v. Venosdol, 101 Ind., 160; Price v. Price, 29 L. R. A., 153; Ash v. Prunier, 105 Fed. Rep., 723; Civil Code, 606; Commonwealth v. Sapp, 90 Ky., 580).

The court did not abuse its discretion in refusing to allow appellant to file an amended answer setting up a new defense after she had begun the introduction of her evidence. (Nolin v. Pearson, 191 Mass., 283; Am. & Eng. Ann. Cases, 6, 661; Plant v. Woods, 176 Mass., 492, 57 N. E., 1011; Civil Code, 164; Newman on Pleading & Practice, 704-705; Greer v. City of Covington, 83 Ky., 410; Yocum v. Foreman, 14 Bush, 494; Donnelly v. Pepper, 91 Ky., 363.)

3. Evidence of appellant's financial condition and circumstances was incompetent. Givens v. Berkley, 21 Ky. Law Rep., 1653: Overruling L. C. & L. R. R. Co. v. Mahoney's Admr'x, 7 Bush, etc.)

4. Evidence showing that the appellee's husband was the seducer and not the seduced, is incompetent in actions of this character. (Nolin v. Peason, supra; Nichols v. Nichols, (Mo.) 48 S. W., 947.) 5. The judgment for five thousand and five hundred dollars is not excessive. (Klien v. Klien, 31 Ky. Law Rep., 28; Hartpence v. Rogers, 143 Mo. 623, 45S. W. -; Nichols v. Nichols, supra; Lockwood v. Lockwood, 67 Minn., 476, 70 N. W., 784.)

PROCTER & HERDMAN for appellee.

WATKINS & BIRKHEAD of counsel.

SUMMARY AND AUTHORITIES.

1.4A plea that plaintiff's husband was the aggressor and caused the acts in question did not present a good defense. (Hart v. Knapp, (Conn.) 100 Am. St. Rep., 989.)

2. These facts being in confession and avoidance could not be proved under a general traverse. (Newman's Pleading & Prac., (New Edition) 424b, 424c, 424f, and 4241; Klien v. Klien, 101 S. W., 383, (J. Hobson.)

3. The court did not abuse its discretion in refusing an amendment pleading such facts.

4. Evidence of words, çonduct, and demeanor of plaintiff's husband not in her presence is incompetent. (Klien v. Klien (supra.)

Scott v. O'Brien.

5. Evidence of financial condition of defendant is incompetent in this action. (Givens v. Barkley, (Ky.) 56 S. W., 158; Beavers v. Bowen, (Ky.) 70 S. W., 195.)

OPINION OF THE COURT BY WM. ROGERS CLAY, Commissioner-Reversing.

Appellee, Virgin O'Brien, instituted this action against Florence Scott to recover damages for the alienation by the latter of her husband's affections, and for the loss of his society and support resulting therefrom. The petition charges that the defendant by various "acts, devices, blandishments, and seductions alienated the love and affections of plaintiff's husband, and destroyed the happiness of her home." Appellant's defense was a general denial. Upon trial of the case the jury awarded appellee damages in the sum of $5,500. Defendant's motion and grounds for a new trial were overruled, and she appeals.

The principal grounds relied upon for reversal are (1) the exclusion of relevant and competent testimony offered by appellant; and (2) errors in giving and refusing instructions.

From the evidence in the case it appears that the appellant's husband, Brownie Scott, died in September, 1905. At that time she had two little girls, four and nine years of age, respectively. Scott left to appellant and his two children insurance amounting to about $4,000. With this money she paid some $500 of his indebtedness, and bought the home where she lived at the time of the trial, paying the sum of $1,400. At the time of Brownie Scott's death, he lived adjoining his tobacco factory in Bowling Green, Ky. Appellee's husband was then in his employ. Some little time after Scott's death, O'Brien, the husband of appellee, began to pay attentions to the