Appeal from the City Court of Mattoon, Coles County; the Hon.
JACOB BERKOWITZ, Judge, presiding. Reversed.
Rehearing denied April 2, 1964.
This appeal involves the problem of piracy on the matrimonial seas. Plaintiff, an ex-wife of one, Clem C. Farrier, charged the defendant, present wife of Clem, with alienation of his affections. The trial court accepted a jury verdict of $20,000 in favor of the plaintiff, entered judgment on the verdict and denied defendant's post-trial motion for judgment notwithstanding the verdict or for a new trial or for a remittitur of $17,500. The defendant here seeks either a reversal or a remandment for new trial. The defendant says this judgment cannot stand because (a) the plaintiff neither alleged nor proved that there was any love and affection on the part of Clem for the plaintiff which might or could have been alienated, (b) that no acts, words or conduct of the defendant induced, enticed or precipitated the flight of Clem's love and affection from the plaintiff, and (c) the verdict is far in excess of the actual damages shown by the evidence.
The undisputed chronology of plaintiff's marriage with Clem briefly follows: They were married on August 2, 1942. One daughter, Shirley, 16 years of age at the time of the suit, was the product of this union. Clem departed the family domicile on August 10, 1961 and filed his suit for divorce on September 14, 1961. Plaintiff counterclaimed charging cruelty and was granted a divorce on her counterclaim on March 31, 1962. The divorce decree awarded her custody of Shirley, possession of the jointly owned home, possession of the furniture and directed that Clem pay her $50 per month alimony, $50 per month child support, $76 per month on the mortgage existing on the home, and that he pay all utilities except the telephone. Clem's take-home pay from two jobs was about $415. Since 1952 he was employed by the Central Illinois Railroad and the U.S. Grant Hotel. The railroad job apparently required 8 hours per day, five days a week, and the hotel job 8 hours per day, six days a week. The family had lived in a $12,500 home for about six years upon which the mortgage balance approximated $8,525. Clem married the defendant on April 22, 1962, 22 days after the divorce. Plaintiff filed the instant suit on May 11, 1962, 19 days after Clem's second marriage.
Our review of this case must be continually kept in focus with the declared public policy of this State that the damages "shall be limited to the actual damages sustained"; that "no punitive, exemplary, vindictive or aggravated damages shall be allowed," and that any "punishment of wrongdoers guilty of alienation of affections" shall be left to the criminal laws of the state. Ill Rev Stats (1961), c 68, § 34 et seq. To sustain a cause of action plaintiff must allege and prove (a) love and affection of the spouse for the plaintiff, (b) overt acts, conduct or enticement on the part of the defendant causing those affections to depart and (c) actual damages. It was early stated in Bassett v. Bassett, 20 Ill. App. 543, 550 that:
"Marriage, of itself, cannot be considered as conclusive proof of that mutual regard and love which should be entertained by husband and wife, and where one of them seeks to recover damages for the loss of love and affection, we know of no case that goes so far as to deprive the defendant of the right of showing the real feelings of the other to the plaintiff."
Current literature on the subject suggests that the truth of the first portion of this statement has not diminished with the passage of time.
We now turn to the evidence to ascertain, if we can, the locale of Clem's love and affection. That they had departed the family domicile before his physical departure on August 10, 1961 is not a matter of dispute. Nautically speaking, we must determine whether they just drifted away, whether Clem voluntarily floated them away or whether the defendant pirated them away. The liability of the defendant must rest on the last of the three alternatives.
The atmosphere of the home is in sharp dispute. Plaintiff, her sister, the daughter and the mother-in-law testified to a commonplace, normal love and affections and relatively uneventful family existence. Clem characterized the life as devoid of affection for almost five years, little family conversation, few family pleasures or entertainment together, a lack of sexual relations for almost five years, a circumstance which the plaintiff denied, and no display of normal affections in the family. The true atmosphere of this family is thus characteristically a jury question.
The trial court sustained objections to testimony of defense witnesses of Clem's relationship with other women, some 5 or 6 in number, extending over a period of five years and that these women would come to the railroad station and Clem would change clothes and depart with them from time to time. An offer of proof was denied. Statements made by Clem to these witnesses that he was unhappy with his married life and that on one occasion he stated that he remained only for the sake of the daughter and would leave when she became of age were likewise excluded. We think the trial court was in error in excluding this testimony and that the jury should have been permitted to consider this testimony not as a part of the res gestae but as an exception to the hearsay rule.
The Court in Dunn v. Dunn, 241 Ill. App. 11 at 18-19, said:
"Appellant's counsel has cited many cases on the subject of hearsay which are entirely inapplicable. . . . Jones, Commentaries on Evidence, Vol 2 Sec 350. The author continues: `That where emotions, feelings or state of mind of third parties are to be proved, the Courts often permit their declarations as original evidence, although such statements have many of the elements of hearsay. This has often been illustrated in actions for the alienation of wife's affections, and in other actions where state of feeling has been relevant.' Many cases are there cited in support of the rule."
In Fox v. Fuchs, 241 Ill. App. 242, 262 the Court said:
"Testimony of the defendant, or other witnesses as to statements of the alienated husband, showing the state of his affections, his motive or reason for separating from the plaintiff, or the effect ...