Appeal, No. 85, Jan. T., 1953, from judgment of Court of Common Pleas No. 4 of Philadelphia County, June T., 1950, No. 5355, in case of T. Bayard Baldridge, Jr. v. James D. Matthews. Judgment affirmed. Trespass for criminal conversation. Before DAVIS, J. Verdict for plaintiff in the sum of $10,000. composed of $7500 compensatory and $2500 punitive damages; verdict remitted to $5000. and judgment entered thereon. Defendant appealed.
William Bruno, for appellant.
Elston C. Cole, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
In this action for criminal conversation the jury returned a verdict for the plaintiff in the sum of $10,000 composed of $7,500 compensatory and $2,500 punitive damages. The defendant filed motions for judgment n.o.v. and for a new trial, both of which motions the learned court below refused. The refusal of a new trial was conditioned on the plaintiff's filing a remittitur for so much of the verdict as was in excess of $5,000. The remittitur was duly filed and judgment was entered
for the plaintiff on the reduced verdict. This appeal by the defendant followed. In addition to the lower court's refusal of the defendant's motion for judgment n.o.v., the appellant assigns here for error certain of the trial court's rulings on evidence, its refusal of a number of points for charge and portions of the charge. He also alleges that the plaintiff's attorney prejudiced the defendant's case by the use of leading questions and by improper argument to the jury, and that the verdict was excessive.
There is not a semblance of merit in the appellant's claim to judgment n.o.v. The common law has long furnished an aggrieved husband with a right of action for criminal conversation against his wife's adulterer: Antonelli v. Xenakis, 363 Pa. 375, 376, 69 A.2d 102. The gravamen of the tort is the indulgence by the offender in sexual intercourse with another's wife without her husband's consent: Antonelli v. Xenakis, supra. And, as set forth in Restatement, Torts, § 685, -- "One who, without the husband's consent, has sexual intercourse with a married woman is liable to the husband for the harm thereby caused to any of his legally protected marital interests." This common law right of action in trespass for damages continues to exist in Pennsylvania; its was not abolished by the Act of June 22, 1935, P.L. 450, as amended: see Antonelli v. Xenakis, supra.
In the instant case the plaintiff, in his complaint, pleaded a prima facie case of criminal conversation and at trial adduced evidence to substantiate his averments which the defendant denied. The case was peculiarly one for the jury. As stated by the learned court below, -- "The record is replete with corroborating facts and circumstances from which the jury could reasonably conclude that defendant did have intercourse with plaintiff's wife without his consent. To catalogue these facts would unnecessarily and unduly enlarge an already
voluminous treatment of the matter.*fn1 Defendant's contentions tested the credulity of the court and obviously that of the jury." The motion for ...