Blair v. Paterson

• Decision Date: 04 May 1908
• Citation: 110 S.W. 615,131 Mo.App. 122
• Parties: ANNIE BLAIR, Respondent, v. JOSEPHINE PATERSON, Appellant
• Court: Kansas Court of Appeals

110 S.W. 615

131 Mo.App. 122

ANNIE BLAIR, Respondent, v. JOSEPHINE PATERSON, Appellant

Court of Appeals of Missouri, Kansas City

May 4, 1908

Appeal from Jackson Circuit Court.--Hon. Thomas J. Seehorn, Special Judge.

AFFIRMED.

Judgment affirmed.

W. N Pickard for appellant.

(1) The court erred in overruling motion for new trial as verdict was not justified by the evidence and not warranted by the pleadings and the evidence. (2) The court erred in not sustaining motion in arrest of judgment for the reason that said verdict did not state whether the damages therein awarded were for compensatory or punitive damages, as provided by law and for the further reason that one of said jurors returning said verdict was incompetent and disqualified by statute. R. S. 1899, sec. 594; R. S. 1899 sec. 3799. (3) The court should have sustained the motion for a new trial on the ground of newly discovered evidence tending to prove that Mrs. Blair, the plaintiff herein, was never married to her alleged husband, so that this vital point might be passed upon by a jury. Even if the defendant had heard of this fact, yet she did not realize its importance or legal effect and did not disclose it to her counsel as record shows. (4) The court erred in not granting a new trial because one of the jurors returning said verdict H. V. P. Kabrick, being sixty-five years old at the time, was prohibited by law from serving as a juror. The statute is mandatory. R. S. 1899, sec. 3799. (5) The court erred in giving instructions 1 to 5 at request of plaintiff.

Horace H. Blanton and Brown, Harding & Brown for respondent.

(1) The verdict was sustained by the evidence and warranted by the pleadings and instructions. Courtney v. Blackwell, 150 Mo. 277. (2) The court properly overruled the motion in arrest of judgment. R. S. 1899, sec. 594; R. S. 1899, sec. 595; Courtney v. Blackwell, 150 Mo. 277. (3) The court properly overruled the motion and amended motions for a new trial on the ground of newly discovered evidence. Defendant's first amended motion for a new trial was not filed within four days after the rendition of the verdict but was filed nineteen days thereafter; and defendant's second amended motion for a new trial was filed more than three months after the rendition of the verdict. The alleged newly discovered evidence was within the knowledge of defendant at the time of the trial and was known to her for one year before the trial. (4) No question as to the competency of the juror Kabrick, was raised until months after the verdict was rendered and the defendant not having examined him at the proper time as to his qualifications waived all objections thereto. R. S. 1899, sec. 3763; R. S. 1899, sec. 3799; Pitt v. Bishop, 53 Mo.App. 600.

OPINION

BROADDUS, P. J.

--This is a suit by plaintiff for damages for the alleged wrongful act of defendant in alienating the affections of her husband W. D. Blair.

The plaintiff introduced evidence to the effect that on the 18th day of September, 1886, she was married to the said Blair; that on or about the 13th day of January, 1905, the defendant induced her husband to abandon her; and that she has since continued to deprive plaintiff of his support and companionship. There was evidence tending to show that during the period of time mentioned between the date of the alleged marriage and that on which said Blair abandoned plaintiff he had become habituated to the excessive use of intoxicating liquors, and that the relation between the two was not of a very affectionate character; that plaintiff had gone so far as to bring a suit for divorce which however she dismissed; that Blair afterwards became sober and that they were living together in an agreeable manner to the date of the alleged acts of defendant that led to the separation. Plaintiff's evidence went to show that a great intimacy existed between the defendant and Blair, and that she had an undue influence upon his conduct which ultimately culminated in the abandonment by him of the plaintiff. The defendant's evidence tended to controvert that of plaintiff's in every important particular, and it even went to the effect that there was little or no affection existing between plaintiff and the said Blair.

The judgment for plaintiff was for $ 2,000, and defendant appealed. The principal ground relied upon by appellant for a reversal of the judgment is that there was no credible evidence to sustain the allegation that the defendant had alienated the affections of the said Blair. The point is, not that there was no such evidence, but it was such as was not entitled to credit. We have written time after time in numerous cases that have come before this court, that it is not the proper tribunal to determine the credibility of evidence, but that under the law the triers of fact are alone entrusted with that duty. Therefore we must hold again that as the jury has passed upon the facts that the verdict has concluded both the parties to the cause and this court in that matter.

The defendant alleges that the court committed error in the admission of certain testimony, which was incompetent; and that there was error in the giving of instructions for plaintiff, from one to five without specifying in what particular any one of them was improper. If defendant is unwilling or unable to point out these defects, if any, we do not feel that it is our duty to so do.

The plaintiff claimed punitive as well as actual damages. The verdict of the jury is in the following language: "We the following of the jury, agree to find for the plaintiff and assess...