
    Baltrunas v. Baubles.
    
      Husband and wife — Criminal conversation — Action lies without proof of seduction or alienation of affections — Charge to jury.
    
    A husband may maintain an action against the wrongdoer for criminal conversation with his wife without proof that his wife was seduced or that her affections were alienated.
    (Decided November 22, 1926.)
    Error: Court of Appeals for Summit county.
    
      Messrs. Holloway & Chamberlin, for plaintiff in error.
    
      Mr. Carl M. Myers, for defendant in error.
   Washburn, J.

In the court below, plaintiff, Ignac Baltrunas, brought an action against the defendant, Charles Baubles, for damages. In his amended petition the plaintiff alleged that on a certain day, and on divers other days previous thereto, the defendant had carnal intercourse with plaintiff’s wife, knowing her to be such, “without the privilege or consent of plaintiff”; that, by reason of defendant’s said acts of intercourse, the affection of plaintiff’s wife had been alienated from plaintiff; that he had been deprived of the comfort, society, and services of his wife; and that he had “suffered great distress of body and mind and has been brought to great shame and dishonor.”

The trial of the case before a jury resulted in a verdict and judgment for the defendant.

At the trial of the case plaintiff presented to the court before argument certain requests to charge, and asked that they be given to the jury before argument. Among said requests was No. 5, as follows:

“The plaintiff may maintain an action against the defendant for criminal conversation with plaintiff’s wife without showing actual alienation of her affections.”

This request the court refused to give, and an exception was noted; and the court in the general charge said to the jury:

“There are certain things necessary, however, for you to find in this case before finding a verdict for the plaintiff. One of those is that you find that the wife had affection for this husband at the time or just before he claims her affections .were alienated. If she had no affection for her husband, then no matter what the conduct of this defendant has been, this plaintiff has lost nothing, because he could not lose what he did not already have. * * * If you find that the wife had no affection for her husband, the plaintiff is not entitled to recover.”

It is thus apparent that the trial court regarded the action as one for the recovery of damages for alienation of affections only, and refused a right of recovery for criminal conversation unless the affections of the wife had been thereby alienated.

We hold that in doing so the court committed an error. There is a distinction between the essential elements of an action for alienation of affections and an action for criminal conversation. In an action for criminal conversation, the fact of adultery is all-important, and the alienation of the wife’s affections is not a necessary element of the cause of action, while, in an action for alienation of affections, the crucial issue is whether the defendant enticed the .wife, alienated her affections, and injected himself between husband and wife to the destruction of their mutual happiness. The fundamental right violated by criminal conversation is that of exclusive sexual intercourse, which the law grants as a necessary consequence of the marriage relation, and the actual marriage of the parties being admitted or established the cause of action is complete upon allegation and proof of sexual intercourse between the defendant and the wife of plaintiff; it not being necessary to show pecuniary damages, the violation of the marriage rights being sufficient to give a cause of action and to justify an allowance of at least nominal damages. In such an action it is unnecessary to show loss of the wife’s affections or of her services; alienation of affections in such an action being merely a matter in aggravation of damages. Sieber v. Pettit, 200 Pa., 58, 49 A., 763; Evans v. O’Connor, 174 Mass., 287, 54 N. E., 557, 75 Am. St. Rep., 316; Merritt v. Cravens, 168 Ky., 155, 181 S. W., 970, L. R. A., 1917F, 935; Moore v. Hammons, 119 Ind., 510, 21 N. E., 1111; Jacobsen v. Siddal, 12 Or., 280, 7 P., 108, 53 Am. Rep., 360; Barlow v. Barnes, 172 Cal., 98, 155 P., 457; Lee v. Hammond, 114 Wis., 550, 90 N. W., 1073; Valentine v. Pollak, 95 Conn., 556, 111 A., 869; Conway v. Nicol, 34 Iowa, 533; Ruby v. Lawson, 182 Iowa, 1156, 166 N. W., 481; Stark v. Johnson, 43 Colo., 243, 95 P., 930, 16 L. R. A. (N. S.), 674, 127 Am. St. Rep., 114, 15 Ann. Cas., 868.

The petition in this case sets forth an action for criminal conversation,, and, while it alleges loss of affection as a result of such criminal conversation, there was no charge in the petition that defendant by enticement, persuasion, or promise induced plaintiff’s wife to consent to unlawful intercourse, and plaintiff’s right to recover did not depend upon his being able to prove the loss of affection of his wife.

Treating the cause as an action for alienation of affections only, the court charged that the plaintiff could not recover if the wife was not previously chaste, and the defendant did not through his promises or enticements induce her to unlawful conduct; her acts being voluntary on her part. As applied to an action for criminal conversation, this was also erroneous. Ruby v. Lawson, 182 Iowa, 1156, 166 N. W., 481; Scheffler v. Robinson, 159 Mo. App., 527, 141 S. W., 485; Sanborn v. Neilson, 4 N. H., 501.

These errors of the court are fundamental and necessarily prejudicial without regard to the merits of this controversy, as to which we express no opinion whatever.

On behalf of the defendant there were several matters brought out that were proper in mitigation of damages, but not as complete defenses to the action.

We do not deem it necessary to notice the other alleged errors, as they are not likely to occur upon a retrial. We may say, however, that the claimed error as to the testimony of an eleven year old child is not well taken; the objection going to the weight of the testimony and not to its competency. And in so much as plaintiff’s former wife was a witness upon behalf of the defendant, it was proper to show the friendly relations existing between them, as evidenced by his frequent visits to her house, etc.

Also, the court’s refusal to give any of the special instructions before argument was not justified by the fact that said instructions were not each upon a separate sheet of paper. The instructions were 15 in number, and were on three sheets of paper, but the request was that they be given, not as a series, but as separate propositions of law. The further fact, that at the time the instructions were requested counsel for plaintiff also asked that they be taken to the jury room when the jury retired for deliberation, did not justify the court’s refusal to give any of the instructions on the ground that not being on separate sheets of paper they could not be sent to the jury if some were given and some refused. Such as were proper should have been given, and, if there was no separation of the good from the bad, that might have justified a refusal to send them to the jury, but, as has been said, would not justify the refusal to give those that were correct and which were properly presented before argument.

For error in the charge of the court, the judgment is reversed, and the cause remanded.

Judgment reversed and cause remanded.

Pardee, P. J., and Funk, J., concur.  