Cochran v. Cochran

127 A.D. 319, 111 N.Y.S. 588, 1908 N.Y. App. Div. LEXIS 1973

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1908
• Status: Published

Opinions

Woodward, J.:

The plaintiff in this action, a virtuous, industrious and CImstian young woman, was married to a son of the defendants when she was eighteen years of age, her husband at the time being of practically the, same age. This fact was known to both of them. They met at a church functionthe young man seems to have been very devoted, and they appear to have become engaged within a few months of their original meeting in 1902. Ernest Cochran, defendants’ son, was known by them to be keeping company with this young woman; the young people attended the same church with the Cochran family, and the attentions of Ernest were open and public. On the 21st day of September, 1903, the young people, knowing at the time that Ernest’s father and mother did not approve of their intimacy, entered into an- arrangement that they would be married and that the marriage should be kept a secret until they should arrive at the age of twenty-one years, Ernest explaining that this was necessary in order to avoid complications with his father, who woidd send him away. It was agreed between them that they should not live together until the time fixed for the announcement, and it appears from the evidence that the marriage was never physically consummated, though this, as we view the matter, has nothing to do with the plaintiff’s cause of action for the alienation of her husband’s affections. The fact that she might be ' willing to waive some of her rights as a wife does not operate to deprive her of the rights which she did not waive as to the defendants in this action.

After the marriage the plaintiff continued to live at home, and her husband appears to have escorted her to her work in the morning and to have visited her every evening until finally the parents took strong measures to prevent him from visiting ■ her when he announced the fact of the marriage. Immediately after the fact became known to the defendants they took steps to bring about a separation ; they went to the home of the plaintiff, where their son was at the time, and inquired, for him at midnight, and, on being told, at liis request, that lié was not'present, they went away, only to send for him again in the morning. • The evidence shows that the father took the boy on his lap ' and told him that “ those people' don’t love you like your own father and mother do,” ■ and appealed to the boy to stay with his mother through her trophies' in reference to the death of her sister, and did many things-, calculated to work upon the feelings of a youth of eighteen, and that subsequently the boy was furnished money and was sent away from home, and that a letter which the boy subséquently wrote to the plaintiff through one of the defendants was summarized in such a manner as to indicate that it contained no words of endearment, merely the cold facts being transmitted to her. Plaintiff’s husband was-by these acts on the part of the defendants taken from her and kept away from her for a long time, during which the defendants refused to permit the plaintiff to know of his whereabouts, and when the young man finally returned to the home of his parents, making no effort to communicate with the plaintiff, she had him arrested for failure to support her. Then it was that Ernest agreed to live with her and support her, and the story of the night which these two young people spent together in the apartments provided by .the defendants shows the spirit of the whole matter and amply justifies the verdict of the jury in favor of the plaintiff. Ernest took this young woman to a barren room, and after remaining there with her for a time he announced that he was going into a back room to sleep with a cousin. To this the wife refused to consent, ^and these two young people lay upon the bed in this room with their clothes on and talked all night. Ernest made no provision for food or any means of cooking it, and the plaintiff the next morning returned to her mother’s home, and the husband never returned after her, or made' any further move in the direction of living with and supporting his wife, and it is apparent from his testimony upon the trial that he has entirely ceased to have any affection for the plaintiff. The evidence in this case, as compared with that which is to be found' in Servis v. Servis (172 N. Y. 438), is overwhelming that the appellants used some influence against the plaintiff after they knew of the marriage, and that they contributed toward alienating .from the plaintiff her husband’s affections, and in the case cited the court distinctly say that the judgment should have been affirmed except for an error in the charge of the court.

We have no quarrel with the language of the court in Pollock v. Pollock (9 Misc. Rep. 82) that it “yet remains to be judicially sanctioned that parental solicitude for a child’s felicity is a reprehensible quality,” etc.,, but here the facts complained of occurred after the marriage and at a time when the rights of the plaintiff had become' vested. The defendants in this case had a perfect right in. lavv to take any steps which seemed to them right and proper to prevent Ernest going .with the plaintiff ; they had a perfect right up to the 21st day of. September, 1903, not only to forbid, but to use -all necessary force to .prevent, the marriage of their son to this plaintiff, but upon that day a new element entered into the calculation. Both of the parties had a.legal right to marry,

* and the marriage carried with it the right of this plaintiff to the love, companionship, consortium and all of the incidents of marriage. Whatever may have been the agreement as between the plaintiff and Ernest, as to these defendants, the law gave her these rights. All conversations, not tainted with fraud, were merged in the marriage contract, and while the plaintiff and her husband might agree .that there should be no. consummation of the-marriage until a particular date, or that they would not hold themselves out to the public in their new relations, the defendants could gain no rights under such an agreement, except that they could not be held liable for. infractions of the wife’s rights so long as the truth was withheld from them. When, however, they became aware of the marriage they owed the duty to this wife to respect her rights, and acts tending to disturb her rights subjected them to liability for damages, and, these the jury have assessed, If these parents had been as solicitous of the welfare of their son before the marriage as they would .have us believe they became when the marriage was known, the difficulties might have been obviated. They .'appear to have-been passive for months, knowing that this willful boy, who disregarded the wishes of his mother,, was going to see this young woman every evening, and they made no determined effort to break off the intimacy until after the marriage. Then, when their acts forced, an . admission of the’ .truth, instead of. making the best of it, and giving to the plaintiff the moral support of parentage, they persist in their effort to assert parental authority over the son, and thus to expose this young woman, not ' alone to .the loss.-of, her .marital rights, but to the loss of the respect and confidence of her friends and associates, and to expose her to the temptations always incident to these unfortunate complications.

It is not necessary to determine, in an action for damages for the alienation of affections, whether the marriage of an infant operates to take away the control of the father and emancipates the son, though it would seem to follow that with the obligations which the marriage relation involves, the son, once having entered the relation, is bound to perform its duties. If this is true, then the lesser relation must cease. But that is not the question here; the matter now before us is the alienation of the husband’s affections, and the evidence in this case clearly justified the jury in holding that the rights of the wife had been invaded by the practical abduction- of the husband, and keeping him away from her until he was willing to take the stand as a witness in behalf of the defendants, showing that the affection had ceased. There was no question here, as in Servis v. Servis (supra), of the affections having been previously alienated, or never having existed.

It is urged, however, that there was error in admitting conversations of the plaintiff with her husband, not in the presence of these defendants, both before and after the marriage, in which the husband detailed conversations with his father in reference to the

___ affair. W e have examined these matters, and we are persuaded that they were a part of the res gestee / that they were matters which it was proper to bring out as showing the situation of the parties — the standpoint from which they acted — and there is no reason to suppose that the evidence was understood in any other relation. The objections were very general, and when the case is read we are of the opinion that the evidence was competent for the purpose for which it was introduced, and that there is not reversible error presented by the exceptions.

The suggestion that this verdict of $7,500 is grossly excessive does not appeal to us. This young woman has been wronged; all of the rights and privileges which belong to the marriage relation have been denied to her under circumstances which are not calculated to arouse great sympathy for the defendants, and we are of opinion the judgment should stand.

G-atnor and Miller, JJ., concurred; Jenks, J., "concurred in result; Rich, J., read for reversal.

See Dom. Rel. Law (Laws of 1896, clap. 272), § 4, subcL.1.— [Rep.