Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1898-03-03

him. This was to contradict a state
ment male by Williamson in his testi
mnny.
The plaintiff closed, and addressed
the court on the law in the case.
The prayers of the plaintiff set forth
thu right at tine husband TO sue Tor
alienation OF his wife's affections. The
defeudant meed not be the sole cause,
nut the controlling cause OF the
plaintiffs mss of her affections, and the
! plaintiff need not shov that his vito
| had affection for him at tue time in
\ question. Should the jury decide for
the plaintiff, the damages should be
| sufficient 10 compensate him for the
loss of her services and eompanionship.
less the value of the performance by the
husband of his duty to support, clothe
and care for her; and for wanlon, rock
less, wilful or malicious alienation
might give damages by way Of pun
ishnient beyond mere compensation
for the actual injury.
Tho plaintiffs counsel held that the
divorce was no bar 70 the action anu
il tho Jury was satisfied that the
plaintiff Hn,l his wife did not live hap
PLY together. this would not constitute
bar TO the action.
TIE defendants brief asks tho court
10 instruct the jury that the act of IA
scmb,y divorcing the Prettymans is a
complete bar 10 this cause of action;
that under the statute of limitations,
the Jury, should it find for the plaintiff,
could only asHess damages from May
5ih. 1895; that the n!aintiH could not
recover for loss of services whiin living
in state of separation from his vito,
Gpd il the Jury should believe that they
separated May 18th, 1894, with tho in
tcnt not to reside together thereafter,
they can only RHsesS damages from May
9TH 1891. to May lJth., 1894, and such
damages should lie nominal in amount ;
that the plaintiff must show wrongful
! and wltuI attempt by the defendant 10
ALLEVIATE the affections OF his wife; that
misconduct Of the husband must he
considered by the Jury and 60 in tniti
gHtiun Of damages
If the jury should believe that all
/ affection between husband aud wifn
, was destroyed prior to her acquaintance
! With the defendant, Mr.. Cooper held
J that they should return verdict for
. the defendant.
. Pending argument, court adjourned
until afternoon.
F Associate Justice James Penrewll.
j delivered the charge TO the Jury in the
e TnesuGy morning
9 After setting forth tbs nature of this
D case, tho declarations and the pleas,
Judge Psnnewill explained the law ap
> \ plicabe to ii. Although such case'
Q are new in Delaware courts, the actor
8 is an old ons anu has been frequent,
s resnrted TO in other jurisdictions
e Tho husband is entitled to TN
g society. assistance and services OF hi
wife, and whoever by the alienation o
q the wife's affections, deprives hin
I, thereof commits wrong against tn
u husband for winch he is liable to re
rs spond in damages,
IT Where the basis OF thu action ia th
if ALIENATION Of the wife's affections, tn
measure of damage Ia the value Of he
:. services and marital consort, that is
II her coniugal society, affection ant
,e assistance less the value of the per
formance of the husbands duty TO sup
port, clothe, cherish and care for her.
D. Judge Pennewill discussed the tw
kinds OF defence to such actions, til
8 one going to the complete bar and al
81 solute defeat of the action, and tn
IN other going in mitigation or reductio
y of damages. A defenca of the first kin
a is the consent of the husband to 10
as act complained OF. AS to mitigation {
% damages. evidence will be receive
nj which tends to show that the plainti
lie has in fact suffered less injury tina
he would otherwise be probable inierenC
IN from the act complained OF. II
proper, therefore, to consider, in nit
e, cation Of damages, any evidnnce whic
ut shows that prior 10 the wife's relation
40 with tho defendant, the relations h
he tween her aud her husband wore vi
hnnnps that thaV Nfnnfipu
n, affection for one another; that the
cd was but slight intercourse betwet
'ty them that he was cruel or unsiud
~ his treatment Of her: that he failed
In support nsr, and any misconduct
I'm his part tending to show their unhapl
relations or lack Of affection. And
on the husband he guilty Of negligence
TO loose and improper conduct respectil
on the wrongful acts of the wife, but n
ed amounting to consent. il goes IN nit
" CATION or reduction of damages. L!
lie fact that o husband is living apart fro
d. his wife may likewise he shown
or mitigation Of damages, but il is not
bar TO the action itself, and certain
es, not. if ne has not renounCed mis- MART
Up rights and permanently and total
lon given up all advantage to be gain
III, from the society OF his wife.
ras And the reason of the rule is th
any unhappy relations existing betwe
isr this plaintifF and his wife, not cGus
ice by the conduct of the defendant, NJ
d. affect the question Of damages, but tn
zen are in no 6eusp "a justification of {
ord defendants conduct. They are allow
OF TO affect tho damages, mot because {
ucts of the defendant are less reprehe
or sihle, but that the condition Of the hi
hat band Is such that the injury viii
her such acts occasion is less than 9TH
lar wise might seem.
nan The court laid down its couclusit
new on tho questions raised by the praye
MI Tho divorce granted to Mira. Prettym
F.. May 26th. 1897, may he and should
he considered in mitigation Ut damages,
reis you should think tue plaintiff euIit
10 recover damages, because tho plain
IS. would not he entitled to any compel
by ton for the luss OF thu affection, soci
rom anu services Of his wife after she ceAl
ley. to be his wife. a number of cases W
lan. cited bearing on the points involved
my But, in order TO lind verdict
AIR. the plaintiff in this case you N ust
n. satisfied from tho testimony, and J
ars- must lie satisfied by the preponderan
NY that Is the weight Of the testimo
ing that tine defendant committed the
rom jury or wrong of which the plain
ther complains. II Won helieya that the d
men and conduct of the defendant were
ared controlling cause of the wrong or mi
open complained of. and without whiul
Of would not have occurred, the act
Pre- could he maintained, although th