Bradbury v. Brooks

• Decision Date: 20 June 1927
• Docket Number: 11667.
• Citation: 82 Colo. 133,257 P. 359
• Parties: BRADBURY v. BROOKS.
• Court: Colorado Supreme Court

257 P. 359

82 Colo. 133

BRADBURY v. BROOKS.

No. 11667.

Supreme Court of Colorado, En Banc.

June 20, 1927

Error to District Court, El Paso County; Arthur Cornforth, Judge.

Action by Marion E. Smith Brooks against Vivian Bradbury. Judgment for plaintiff, and defendant brings error.

Affirmed.

Cunningham & Foard, of Colorado Springs, for plaintiff in error.

Enos &amp Chisholm, of Denver, and Thomas I. Purcell, of Colorado Springs, for defendant in error.

DENISON, J.

Marion E. Brooks, plaintiff below, had a verdict and judgment against Vivian Bradbury for $23,000 compensatory, and $2,000 exemplary, damages for the alienation of the affections of plaintiff's husband, Howard A. Brooks. The defendant brings error.

The main force of defendant's argument here is in support of the claim that the verdict is unsupported by the evidence but the evidence for plaintiff, if believed, was quite sufficient, while that of defendant contained nothing which even if believed, was conclusive in her favor except her own denials. If the evidence here were as conclusive against the verdict as in D. & R. G. R. E. Co. v. Peterson, 30 Colo. 77 69 P. 578, 97 Am.St.Rep. 76, cited by her counsel, we should treat the case differently; here, however, is a case pre-eminently for the jury.

It is claimed that the damages were excessive. We think not. If we are right above we must assume that plaintiff has been deprived by defendant of the love, society, and future support of her husband, and of the happiness of a home with all that word implies, and that she has suffered such pain of mind as a rejected wife must. Williams v. Williams, 20 Colo. 51, 70, 37 P. 614; Sullivan v. Valiquette, 66 Colo. 170, 180 P. 91. There is also evidence that defendant began her relations with plaintiff's husband while she knew of his happy relations with his wife and pursued such course as she did pursue with him so long and continuously as to prove deliberation, and deliberation with knowledge amounts to malice. McAllister v. McAllister, 72 Colo. 28, 30, 209 P. 788; Biggs v. Biggs, 78 Colo. 310, 311, 241 P. 539. She acted in 'utter disregard of consequences.' Cohen v. Fox, 26 Colo.App. 55, 58, 141 P. 504, 505. Therefore we cannot say that the exemplary damages were unjustified.

Plaintiff's conduct is attacked, and with reason, but here again the evidence is in conflict and the jury has found for her. She and her husband lived together for months after the offense, whatever it was, and after he came from their home to Colorado for his health, for months, and even after he met defendant he wrote letters showing great affection for his wife. Even if she had offended she had the right still to retain him and his affection if she could.

Many objections are made to the ruling of the district court on the evidence. We have considered them all. Some of the rulings, we think were right, others, if wrong, were unimportant, but, however that may be, except as to the points we notice hereafter, the motion for a new trial did not include them. The only statement of a ground covering any of these matters in that motion is the following:

'That the court erred in excluding other competent, relevant, and material evidence offered on behalf of the defendant on the trial, to which ruling of the court the defendant duly objected and excepted.'

It will be noticed that this covers no erroneous admission of evidence, and we have uniformly held that a general statement of that sort is not a sufficient assignment. First National Bank v. Lewis, 57 Colo. 124, 139 P. 1102; Jones v. Dunlap, 78 Colo. 221, 239 P. 989. In addition to this there is no assignment of error in the admission or rejection of evidence.

An error in the admission of testimony which is properly assigned is that the court admitted cross-examination of the defendant relating to the amount and value of her property. Such evidence is always competent in cases of this sort.

The court refused to permit the witness Howard A. Brooks to testify without the consent of the plaintiff, his wife. This is in accordance with C. L. § 6563, and the court could not hold otherwise.

The instructions of the court are vigorously attacked. In its instructions the court treated the...