Evening journal., 1898-03-02

Iff%tA~AfA - NV NAt1 = UNlBlE Iitt UIluRIDR
OF the suit would not destroy the nip-
pelee's right OF action; THAT might be
the means OF perfectlng IL. .
The action is brought for the injury
and destruction of the plaintiffs mari
tai relations. and is not based upon
their then existence. In Michael va.
Dunkle, 81 Ind, 544, (Supreme Court)
which was am action by the husband
Tor criminal intercourse with his wife
accomplished after a final separation
from her, which is followed, before the
commencement OF the action, by a di-
vorce granted TO her ON account OF his
cruelty, II was insisted THAT upon the
facts the husband was not entitled to
recover The court said. I'VE thinlS
otherWlSe. II would not be
in the interests OF good order and Tho
public morals to permit the selducer OF
wife % set up al disagreement, or
even separation, between her and her
husband as a complete defence to am
action by the latter for the wrong In
thiscase thehusband permitted hiswife
without resistance, to obtain a divorce
But, gentlemen of the jury, IN order
TO find verdict for the plaintiff in this
case you must be satisfied from the tes-
timony and you must be satisfied by
the preponderance, THAT Is the weight.
of the testimony, that the defendant
committed the INJURY or wrong OF
which THE plaintiff complains IL you
believe THAT the acts and conduct of the
defendant were the controlling cause OF
the wrong or INJURY complained OF.
and without which it would not hove
occurred, the actiom could be MAIN
tanned, although there were other
causes contributing thereto. Such Ia
the rule laid down in the case OF Had
ley vs. Hayward, 121 Mass, 236, and
We think it is a very correct statement
OF the law. But IN, ON the other hand,
You believe that such wrong or injury
occurred by reason of the cruelty or mis-
conduct OF the husband, THE plainltiff,
and are NOT satisfied from the testi-
mony that the acts and conduct of the
defendant were the controlling cause,
then your verdict should be for the do
PENDANT; unless You believe that the
defendant by obtaining the affections OF
the wife prevented or obstructed a re-
conclliatiOn between the husband and
his wife, which THE policy Of the law,
as wellas the goodof society, encourages
and demands. Because even IL The wife
had NO affection for her husband. am
other person has Mo right to interfere
TO cut off all chance of it's springing up
in the future. Fratini VS.. Caslani. 80,
tVt.), Atl., 252. Dallas VS. Sellers. IT
Ind. 479.
"The fact. however, THAT the plaintiff
and his wife lived unhappily together
before the defendant appeared, and
even we're much estranged, would not
constitute a bar to the plaintiffs ac-
tion, but would go, ais we have already
said. in mitigation Of damages.
If, however, the conduct Of the hus-
band has been such as to Justify the
wife in leaving him, he canInot main-
tain an action against another who as
sists her, or receives or harbors her,
provided his assistance is rendered
from motives OF humanity and not
from an evil motive or purpose, or in
Dad faith toward the us0and. / Bishop
on M. and d., Sec. 1852.
II you should conclude, after care
fully and fairly considering and weigh
ing the testimony as yOu have heard
it from the witnesses, and applying the
law as the court has declared 1t to you,
that the defendant committed adultery
with the wife Of til. plaintiff. then your
verdict should be Tor such amount as
in your Judgment will compensate the
plaintiff fer his mental suffering from
the dishonor Of the marriage bed and
the loss of the affection Of his wife and
the comfort OF her society, ais we'll as
the pecuniary loss of her services. II is
for you to say whether from the evil
dence lit Is shown THAT the defendant
did commit adultery with the wife OF
the plaintiff
II you should believe that there is no
proof of adultery I'M this case. but are
satisfied THAT the defendant did allen
ute the affections of plaintiffs wife,
your verdict should be for such amount
as in your Judgment VIII compensate
the plaintiff for the loss OF his wifes
and martial consort, less the
value OF the husbands duty to support,
clothe, cherish and care for her; pro-
vided, however, that in NO event cam
you award damages for anywr0ngor in
jury committed prior to the fifth day
OF May. 1894, THAT being three years
before the commencement Of the pres
ent action which was entered on the
flnth day of May 1897
I'VE will say to you, gentlemen OF
the jury, that IL you believe from a pre-
of the evidence that the de-
PENDANT wilfully and maliciously COM
mitted the injury or wrong complained
Of IN this action, you may, in addition
1o amy compensatory damages that You
think him entitled TO, award to the
plaintiff such damages ais you may COM
slider proper as a punishment to the
defendant and an example to others.
But we say to you that such damages
are based on the enormity Of the Of
lense and its malicious, wilful and Rg-
yravated character, and you MUST be
satisfied that such was The character OF |
he offense before you can award dam
lges Of this kind. II HAS been held by
his court heretofore that 1t was a |
question for the jury to say whether |
here were circumstances OF aggT'ava- /
ION IN the case which ought, in their |
to require a departure from |
he general rule OF compensatory damn |
lges, and which called on them to add |
nything by way of public example or
TCRIRENS JURY DRAWN.
After the Prettyman jurors had rem
Tered their verdict, six cf them were