Marie Kuhn, Appellant, v. Friedhold Hemmann and Barbara Hemmann, Respondents

Marie Kuhn, Appellant, v. Friedhold Hemmann and Barbara Hemmann, Respondents. Action by a wife for the loss of the Consortium of her husband, induced by the defendants’ acts — evidence presenting a question for the jury. In an action brought by a wife to recover damages alleged to have-been sustained by reason of her having been deprived of the “comfort, society, aid, assistance, affection, support and maintenance ” of her husband, through the defendants’ acts and inducements, it appeared that the daughter of the defendants, in whose house the plaintiff' and her-husband had an apartment, had for several years been maintained by the latter as his mistress, without the knowledge of the plaintiff, and during the latter part of the time had - lived with him as . -his wife- in a separate house, where they were frequently visited by the defendants; that the defendants told various people that they were doing all in their power to separate the plaintiff from her husband; that they told the husband that' they would pay for a divorce and set him up in business if he would, marry their daughter; and in 1896 furnished him with money with which the plaintiff . who, up to that time, had been living with him in apparent peace and Contentment, was sent to Europe; that, during her absence, the plaintiff’s husband and the defendants’ daughter, with the connivance of the defendants, went through a marriage ceremony performed by a clergyman, who was a friend of the father, and who, .jipon questioning the right of the plaintiff’s husband to remarry, was assured by the father that it was “ all right; ’’ and that thereafter •the couple lived -together in a house owned by the defendants, and subsequently in the very apartments formerly occupied by the plaintiff and her husband, where they were found by the plaintiff upon her return, at which time she first learned of their relations. Held, that, upon the evidence, it was a question for the jury whether the wrongful influence and inducements of the defendants were the cause of the plaintiff’s final abandonment by her husband. Van'Bbunt, P. J., and Ingraham, J., dissented. Appeal by the. plaintiff, Marie Kuhn, from a judgment of the •Supreme Court in favor of the defendants, bearing date the 20th day of June, 1898, and entered in the office of the clerk of the county of Mew York upon the dismissal of the complaint by direction of the court after a trial at the Mew York Trial Term. This action was brought to recover damages for the alienation of the affections of plaintiff’s husband by the defendants. Plaintiff was married to Charles Kuhn in 1890, and in 1892 they moved to an apartment house where the defendants, who were the owners, resided. The defendants’ daughter, Elsie Hemmann, resided with them, and in 1893 Kuhn commenced an adulterous intercourse with this daughter. Discovering in May, 1894, that she was in a delicate condition, he took her to an apartment house on Fifty-sixth sti’eet, where a child was born to them in July, 1894. The defendant Barbara Hemmann frequently visited them at this place, and they were known there as Mr. and Mrs. Kuhn. In 1895 and 1896 they lived together as man and wife in a house on Seventy-seventh street, and while living there were frequently visited by both defendants. At the time of the birth of the child above referred to defendant Barbara Hemmann said to the midwife who was commiserating her on her daughter’s unfortunate predicament: “ Mo matter, it may come out all right; maybe she takes money and goes away, and he can marry her then.” In 1894 Charles Kuhn, in the presence of Friedhold Hemmann, referred to him as his father-in-law, and Hemmann at other times- spoke of. Kuhn in the same year as his son-in-law and of his daughter Elsie as Kuhn’s wife. During all this time and up to the date when she left for Europe, in 1896, the plaintiff was living with her husband in the same house with the defendants, on good terms with them, but was entirely ignorant of the circumstances above referred to. Her husband was earning a good salary, and he was her sole support. She knew of Elsie Hemmann’s condition, but had been told by both defendants that a man named Heckman was responsible therefor. She knew nothing of her husband’s infidelity, until her return from Europe in 1896. Admissions of Friedhold Hemmann were proved to the effect that he furnished money to Kuhn to send the plaintiff to Europe, and that he promised to pay all the cost of divorce proceedings and to set him up in business if he would marry his daughter. It was also shown that shortly after the departure of the plaintiff for Europe both defendants stated to friends of hers who had ascertained the true situation that she “ was not worth to have a man like this,” and that it was a pity such a fine, elegant man should be married to such a com- ' mon, ordinary woman. Within a short time after plaintiff’s departure Kuhn and Elsie Hemmann moved into the house adjoining the defendants’, which was also owned by them, and a few months later into the very apartments in the defendants’ house formerly occupied by _ the plaintiff and Kuhn; and they lived "there as man and wife. In May, 1896, and while plaintiff was still in Europe and in ignorance of all these facts,. Kuhn and Elsie Hemmann went through a marriage ceremony, which was performed by a Lutheran minister who had been for many years a personal friend of the defendant Friedhold Hemmann. The latter accompanied them, and when the clergyman (who relied solely upon Hemmann’s word) inquired whether Kuhn had been divorced with a right to remarry, he replied that “ it was all right.” Hemmann also signed the marriage certificate as a witness. On the same day the child was baptized by a minister of another denomination. Plaintiff returned from Europe shortly after this and found Elsie Hemmann living as Mrs. Kuhn in the apartments which had been occupied by Kuhn and herself when she went away. Charles Kuhn had then disappeared. Isidore Hershfield, for the appellant. Frederick H. Ernst, for the respondents. [MAJORITY — Barrett, J.:] Barrett, J.: It is well settled that a wife may maintain an action against one who has enticed her husband from her or deprived her of the comfort of his society. (Bennett v. Bennett, 116 N. Y. 584; Jaynes v. Jaynes, 39 Hun, 40; Baker v. Baker, 16 Abb. N. C. 293; Breiman v. Paasch, 7 id. 252; Westlake v. Westlake, 34 Ohio St. 621.) The defendants evidently misconceived the nature of the present action, for they contend that it cannot be successfully maintained because of a lack of evidence to show that they had any knowledge of the improper relations existing between their daughter and plainstiff’s husband until the child was born. They also assume that the entire wrong to the plaintiff was consummated when Kuhn entered upon his adulterous life with Elsie Hemmann, and that no act of theirs subsequent thereto could add to the plaintiff’s injury. They insist that the plaintiff’s only remedy is, a possible action for damages against their daughter. Their contention overlooks the fact that this action is not to recover damages sustained by the plaintiff as a result of the criminal conversation of her husband with Elsie Hemmann, but for the loss of consortium. This is plainly the gravamen of the complaint. The damages claimed are alleged to have been sustained by reason of the plaintiff’s deprivation—resulting from the defendants’ acts and inducements — of the “ comfort, society, aid, assistance, affection, support and maintenance’’ of her husband. Mere marital infidelity would not suffice to maintain such an action, for marital infidelity alone did not cause the wrongs of which" the plaintiff is now complaining. There is no evidence whatever to show that she was, in any way, deprived of the “ comfort, society, aid, assistance, affection, support and maintenance” of her husband up to the time when she left for Europe. It is true that he was then, and had been for some time previous thereto, maintaining a mistress with whom he passed a portion of his time. But of this the plaintiff was in complete ignorance. He still continued to live with and support her, and he ostensibly fulfilled all his marital relations. It is clear, then, that there was, up to this time, no such alienation of affections as would have entitled the plaintiff to maintain an action like the present against these defendants. (Romaina v. Decker, 11 App. Div. 22; Buchanan, v. Foster, 23 id. 544; Hodecker v. Strickler, 39 N. Y. Supp. 515; affd., 20 App. Div. 245.) Thus, the only injury which plaintiff suffered up to the time of her departure for Europe, was the moral injury resulting from the violation by her husband of his marital allegiance. . It is for the additional wrong which the defendants subsequently caused to be inflicted upon her that she brings this action. This additional wrong consisted in the entire abandonment of the plaintiff by Kuhn, his entering into a- bigamous marriage with the defendants’ daughter, and his taking theTatter to the very apartments in the defendants’ house which he had previously occupied with the plaintiff. This was the loss of the “ comfort, society, aid, assistance, affection, sup-" port and maintenance ” complained of by the plaintiff, and that loss, and the defendants’ responsibility therefor, were sufficiently shown, at least jyrwna, faoie. The plaintiff was living with her husband in apparent peace and contentment up to the time of her departure for Europe. Some time previous thereto the defendants talked of taking steps to get her out of the way. This was because of Kuhn’s relations with their daughter, of which they were fully aware. Their admissions were given in evidence to the effect that they had told Kuhn that they would pay for a divorce and set him up in business if. he would marry their daughter; and that they furnished him the money to send the plaintiff to Europe to get her out of the way. It was proved, too, that they connived at and encouraged the bigamous marriage with their daughter. We also find that they freely told various people that they considered Kuhn’s lawful wife a common woman, much beneath him, and that they were doing "all in their power to separate him from her. How well they succeeded has already been shown. If they had taken no steps at all in the matter Kuhn might never have wholly abandoned his wife. At any rate, there was enough evidence to warrant the inference that they induced Kuhn to send her to Europe, with the idea of eventually getting rid of her entirely, and that by their influence and inducements they finally accomplished this latter purpose. Upon all the testimony it was certainly a question for the jury whether .their wrongful influence and inducements were the cause of Kuhn’s finally abandoning the plaintiff. (Remsen v. Hay, 14 Wkly. Dig. 443.) They .cannot escape the consequences of their acts upon the plea of parental solicitude. While we may sympathize with them as parents,, we cannot justify the means which they adopted to effect a partial rehabilitation of their daughter at the expense of an innocent wife. The judgment should be reversed and anew trial ordered, with costs to the appellant to abide the event. Rumsey and Patterson, JJ., concurred: Van Brunt, P. J., and Ingraham, J., dissented. Judgment reversed, new trial ordered, costs to appellant to abide event.