
    McALPIN, Respondent, v. BAIRD, Appellant.
    (166 N. W. 639.)
    (File No. 4117.
    Opinion filed March 8, 1918.)
    1. Pleadings — Recovery for Debauching Plaintiff’s Wife — Complaint — Intent to Deprive Plaintiff of Wife’s Society, Necessity of Pleading.
    A complaint in a suit for damages for debauching plaintiff’s wife, which alleges that defendant wrongfully, etc., debauched and carnally knew plaintiff’s wife, thereby alienating and destroying the wife’s affection for plaintiff, that plaintiff was thereby deprived of the comfort, fellowship, society and assistance of Ms wife, etc., held, upon demurrer to complaint,- that failure to allege intent on defendant’s part to iteprive plaintiff of the society, etc., of his wife, .or that it was with such intent that defendant debauched, etc., does not render the pleading insufficient; nor was it had for failing to negative the consent, connivance or privity of plaintiff; nor was it necessary to allege that plaintiff and his wife were living and co-habiting together at the time in question, or that plaintiff was enjoying the affection, etc., of his wife; that the allegation that defendant debauched, etc., states a cause of action for damages; that intent to injure plaintiff is inferred from the wrongful acts alleged; that if plaintiff and wife were not living together, such facts could he shown in mitigation of damages; while if it were true that -plaintiff consented to or connived at the wrongful acts, such actions would constitute a defense.
    "2. Same — Damages fox' Debauching Plaintiff’s Wife — Complaint, Misjoinder of Causes — Comp-laint Construed.
    A complaint in a suit for damages for debauching plaintiff’s wife, alleging that defendant wrongfuly, etc.; debauched and carnally knew plaintiff’s wife, and thereby the affection of the’ wife for plaintiff was alienated, etc., and plaintiff deprived of the comfort, etc., of his wife, etc., does not improperly unite two causes of action; there being but one cause of action pleaded.
    "3. Sam© — -Complaint—Misjoinder of Causes — Remedy, Demurrer, or Motion — Rule Stated.
    Where more than one cause of action is pleaded in a complaint, which causes all grow out of the same subject matter, they may be joined in the same suit; and in such case the remedy is not by demurrer, but by motion to state the different causes of action separately.
    Appeal fnoro Gircuit Gciuir-t, Brown County. Han. Thomas X- Boucic, Judigie.
    Action by Jota W. M-cAlphiin., agiainsit H. M. B'-aird, to recover damages against -defiend'anlt for debau'dhing -p-lainitiif’is wife. From an .ardeir overruling- a demurrer to the complaint, defend_ant appeals.
    Affirmed.
    ' L. T. Van Slyke, for Ap-pellamt.
    
      No -appearance for Respondent.
    (i) To point lone of the -opinion, Appellant cited: Van Olindia v. Hall 34 N. Y. S'upp. 777; Reading v. Gazzam 49 Atl. 889; Ash v. Pruni-er 105 Fed. 722; Qhiillds v. Mucklet 85 N. W. 100; Pretty-man v. Williamson 39 Atl. 731; Rea v. Tucker 51 111. no; Morning v. Long 80 N. W. 390.
   POLLEY, J.

This is an ¡appeal from an order overruling a ¡demurrer. The portion of the -complaint that is material on the appeal reads ¡as follows:

“That on the 15th --day of M-ay, 1916, and on -divers and other -days between that time and: -the -commencem-enit of this action, li-nichrdlimg the 28th -day of June, 1916, ¡said defendant wrongfully, wickedly, maliciously, and unjustly debauched and cann-a-lfy knew one Edina McAllphin, then and there ¡being and still being- the wife of -plaintiff, and thereby the affection of -said Edna McAlpbki far plaintiff was ali-en-ated and- ¡destroyed and the plaintiff -has -been ¡deprived -of -the -comfort, fello-w,s-h-ip, society, and ¡assistance of hi's -said wife ¡in his domestic affairs and has -been brought ¡inita dishonor and -disgrace to his ■ damage,” etc.

To ¡tlhliis -oomp-liaiiimt ¡defendant 'demurred on the grounds, first, that the c'ompllaliinit does noit 'State facts sufficient to constitute a Cause of action; -and, second, that ¡several ¡causes of action are improperly united.

Appeilant contends ¡that the complaint is b'a-d 'because it ¡do-es melt allege an intent on defendant’s part -to deprive plaintiff of the society, comfort, anld assistance of his wife, or that it was with -such intent ¡that 'defendant debaunched plaintiff’s wife and alienated her ¡affection from -plaintiff, ¡and for ¡the further reason ¡that -said complaint fails to negative the consent, connivance, or privity of plaintiff. Defendant further' contends ¡that the complaint is -baidi, because 'it fails to allege that, at the time of the alleged wrongful ¡acts, plaintiff and ¡lilis said wife were l-iving and cohabiting ¡togelthier, -or that plaintiff wa¡s¡ enjoying t-he affection, lo-v-e, comfort, society, and assistance of his- wife, 'and further contends that the 'Complaint falls to allege an-y acts by which the affection of -plaintiff’s' wife was alienated' or -destroyed!

These -Contentions are wiiltholut merit. The allegation that the defendant deb-au-oh-adi -and- carnally knew plaintiff’s wife states a -cause -of ¡action- foir -dam-ages. It i-s not necessary t'o allege aln intent on defcmdlant’s- part to injure the plaintiff. Such intent is inferred- from the wrongful acts alleged. If iit is a fact that plaintiff -and litis wife were not living together at the time of the wrongful acts c'ompl’aimedi of, such fact could' be shown- in mitigation of damages; or if it were- a fact ' that plaintiff co-n-is'enJtied! to or eonmiyieid ‘ait said wrongful acts, such fact would -cpmstitute .a d!ef erase. The extent of tihe injury 'to the husband in -such cases 'depends- upon the relations existing between- tihe husband and wife -a,t and prior to the time of the alleged wrongful acts. If 'tihe husband -is mot enjoying ithe 'society -of Ms wife at the time olf the -acts complained of, or if, -by his own neglect or misconduct, he has aii-edatedi her affection, -such a-ct's and circumstances will -reduce the amount of damages to which- hie might otherwise be entitled. Prettyman v. Williamson, 1 Pennewill (Del.) 224, 39 Atl. 731; Bunnell v. Greathead, 49 Barb. (N. Y.) 106. But such facts are matters of defense, to be shown by defendant in-mitiigiation of 'damages, rather than to be negatived by the .plaintiff in 'his complaint.

The facts stated in tihe 'complaint constitute a cause of action, but ¡there is nlo merit in the contention that several causes of action- are improperly -united!. In the first -place, but one cause of action is pleaded!. But, if it were to be held ’that more than -one cause of -action is pleaded, they all grow out of the same subjecit-miaitter and m'ay be joined' in the same -action. In su'dh case 'the remedy is melt by demurrer, but by motion to state tire -different causes of action separately. Just v. Martin, 37 S. D. 470, 159 N. W. 44.

The order -appealed from is affirmed.  