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Wiener v. Markel

Superior Court of Delaware, New Castle County

October 25, 1952

WIENER
v.
MARKEL.

[47 Del. 450] Joseph H. Flanzer, Wilmington, Robert C. Barab, Wilmington, for plaintiff.

Clair J. Killoran, David Snellenberg, II, Wilmington, for defendant.

Motion to dismiss, or in the alternative, for a more definite statement and motion to strike paragraph 7 of complaint. Motion for more definite statement granted.

LAYTON, Judge.

This is an action for alienation of affections. The plaintiff, husband, alleges in substance that he and his wife were married and lived together happily until defendant wilfully and maliciously besought, persuaded and allured the said wife and alienated her affections from plaintiff whereby plaintiff was deprived of the love, affection, consortium and society of his wife to his great distress, humiliation and damage. The last paragraph avers

Page 707

The motion to dismiss is predicated upon the argument that the complaint fails to state the times and places when and where the various alleged acts of persuasion and allurement occurred or to describe the nature of said acts.

Under the present Rules of the Superior Court, a complaint need afford little more than general notice of the claim asserted. Pfeifer v. Johnson Motor Lines Inc., Del.Super., 89 A.2d 154; Costello v. Cording, Del.Super., 91 A.2d 182. No case or text authority is cited for the proposition that a statement of claim is fatally defective for failure to set forth the time of the act complained of. On the other hand, an examination of the various official forms of complaints attached to the Rules reveals [47 Del. 451] that in every case the date of the tort or breach of contract is included. As a general proposition, it seems to me that the complaint should allege the date when the wrong complained of was committed. But, where, as here, the alleged alienation of affections would necessarily consist of a series of isolated acts, usually clandestine in nature, the pleader should not be required to specify the dates with any particularity. A motion for a more definite statement will afford ample opportunity to obtain full information concerning the times and places when and where the alleged acts occurred. And our discovery practice will elicit from plaintiff a description of the nature of the alleged acts of allurement.

Accordingly, the motion to dismiss is denied but plaintiff will be required under Rule 12(e) to file a more definite statement setting forth as fully as possible the times and places when and where the acts complained of took place.

There remains for consideration the motion to strike paragraph 7 of the complaint which states that defendant is a man of great financial wealth. In Delaware, punitive or exemplary damages may be awarded in a proper case. Rash v. Pratt, 1 W.W.Harr. 18, 111 A. 225. And in jurisdictions where punitive damages may be recovered, evidence of defendant's financial worth is admissible, 16 A.L.R. 1316, annotation. Ramsey v. Ramsey, 4 W.W.Harr. 576, 156 A. 354. However, for unexplained reasons, this Court in Naylor v. Ponder, 1 Marv. 408, 41 A. 88, 89, a slander suit, charged the jury thus:

'If your verdict should be for the plaintiff, in estimating damages you may take into consideration the position, rank, and influence of the defendant in the community. But you must not take into consideration his pecuniary condition.'

Subsequently, in MacDonough v. A. S. Beck Shoe Corp., 2 Terry 59, 15 A.2d 436, 438, another defamation of character action, the Court ruled out evidence of defendant's wealth stating:

[47 Del. 452] 'We do not feel at liberty to disregard the ruling of the latter case [Naylor v. Ponder] as applicable to an action for defamation.' [1]

It is very plain that the Court in the Beck Shoe Corporation case was limiting the holding of Naylor v. Ponder to actions sounding in defamation of character only, first, because it said so and, secondly, because it did not seek to disturb the already existing Ramsey decision. A conflict has thus developed among our own decisions with the result that in actions where punitive damages are claimed, evidence of a defendant's financial wealth is admissible in seduction cases but not in defamation cases.

Defendant seeks to turn this conflict to his advantage by arguing that no sound reason now remains why the rule of Naylor v. Ponder should not be extended ...


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