Breiner v. Olson

• Decision Date: 31 December 1975
• Docket Number: No. 40111,40111
• Citation: 195 Neb. 120,237 N.W.2d 118
• Parties: Lonnie A. BREINER, Appellee, Cross-Appellant, v. Ted OLSON, Appellant, Cross-Appellee.
• Court: Nebraska Supreme Court

Page 118

237 N.W.2d 118

195 Neb. 120

Lonnie A. BREINER, Appellee, Cross-Appellant, v. Ted OLSON, Appellant, Cross-Appellee.

No. 40111.

Supreme Court of Nebraska.

Dec. 31, 1975.

Syllabus by the Court

1. In an action for criminal conversation the plaintiff is entitled to recover only for such damages as are the natural, probable consequence of the act or acts complained, or such as are the direct probable consequence of the particular tort.

2. A party on appeal may not properly assign the admission of evidence as error where no objection was made thereto in the trial.

3. Error cannot be predicated on the admission of testimony when testimony of the same nature was previously admitted without objection.

4. A motion for a mistrial because of the erroneous admission of evidence must be timely made.

5. The correctness of a ruling of the District Court in giving or refusing instructions cannot be considered by the Supreme Court unless such ruling is first challenged in the District Court by motion for new trial.

6. An assignment in a motion for a new trial that errors of law occurred at the trial does not present the correctness of giving or refusing instructions.

7. In a case where it becomes necessary to give further instructions to a jury while it is deliberating, the proper practice is to call the jury into open court and to give any additional instructions in writing in the presence of the parties or their counsel.

8. It is error to give an instruction to a jury after it has retired to deliberate out of the presence of the parties and their counsel, but if it clearly appears that prejudice did not and could not flow therefrom, this is error without prejudice and not ground for reversal.

9. In the absence of evidence of some special element of damage for which the law provides a specific means of measurement, it is the general rule that in an action for criminal conversation damages are incapable of precise measurement and there is no fixed rule for determining the amount thereof.

10. Verdicts of juries in actions for interference with the marriage relationship should be set aside as excessive only where it clearly appears that the award was the result of passion and prejudice.

Nelson, Harding, Marchetti, Leonard & Tate, Alan L. Plessman, Lincoln, for appellant.

P. J. Heaton, Jr., Sidney, for appellee.

Heard before WHITE, C.J., BOSLAUGH, CLINTON and BRODKEY, JJ., and KUNS, Retired District Judge.

CLINTON, Justice.

This is an action in two causes, the first for alienation of affections and the second for criminal conversation, brought by the plaintiff, Lonnie A. Breiner, against the defendant, Ted Olson, to recover damages for interference by Olson with the marriage relationship of the plaintiff and his wife, Sharon Breiner. The trial court directed a verdict of liability against the defendant on the second cause of action, submitting only the issue of damages. On the first cause the court submitted the issues of both liability and damages to the jury which found for the defendant. It awarded damages in the amount of $25,000 to the plaintiff on the second cause of action. The defendant filed a motion for new trial on the second cause. The plaintiff filed a motion for a new trial on the first cause. Both motions were overruled. The defendant appealed and the plaintiff cross-appealed.

The defendant makes numerous assignments of error which we consolidate by eliminating redundancies and restate as follows: (1) The court erred in admitting evidence concerning other litigation between the plaintiff and the defendant and in denying the plaintiff's motion for a mistrial because of the admission of such evidence. (2) The court erred in excluding the defendant's offer of the testimony of the Reversend Clarence Stenbeck. (3) Instructions Nos. 6 and 7 given by the trial court were erroneous. (4) The court erred in giving an additional instruction in response to a question by the jury during the course of its deliberations. (5) The jury's award of damages on the second cause is excessive and the result of passion, prejudice, mistake, or disregard of applicable rules of law. (6) The court erred in denying the defendant's motion to reduce the jury verdict to $15,000.

A detailed recital of the evidence would serve no useful purpose and we summarize it as follows, taking note of specific matters in more detail as is necessary in the discussion of each assignment. Breiner and his wife, Sharon, were married in 1962 and became the parents of four children. Breiner engaged in the raising of hogs and chickens on small acreages and did custom haying as well. Sharon worked with him in these enterprises which, for a variety of reasons, including loss of hogs by disease, did not succeed. Breiner also did farm labor. In 1969 Breiner was hired by the defendant Ted Olson as a farm manager. Breiner performed to Olson's satisfaction as manager of up to 12 quarter sections of land irrigated by center-pivot sprinklers. Breiner's compensation was increased from year to year. Breiner's evidence, if believed, would enable the jury to find that in 1970 Breiner noticed that his wife was becoming distant; that their sexual relations diminished in 1971 and in 1972 ceased, and the marriage otherwise deteriorated; and that Sharon and Olson had entered into a clandestine affair and were meeting in two different trailer houses (in one of which the Breiners resided) on the Olson farm where the Breiners lived. These rendezvous occurred when Breiner was absent from the farmstead doing farmwork elsewhere. The evidence would permit the jury to find that Breiner did not become aware of the meetings or realize the significance of some of the earlier occurrences until he discovered, in the summer of 1972, a key to the second trailer house (which was unoccupied and had been moved onto the place by Olson in 1971) hidden among his wife's possessions. After the discovery he entered and inspected the trailer house and found a bed neatly made. Because of his suspicions he disturbed the covers to some extent and upon inspecting the bed the following day he discovered the bed had again been neatly made. Breiner repeated the process and inspection several times with like results.

On August 4, 1972, Sharon left the farm, taking the children with her. She went to her mother's home where Breiner found her and attempted to persuade her to return home. She refused. On August 8, 1972, Breiner was served with a summons in a divorce action. On August 9, 1972, he discovered that Sharon had left the children with a Mrs. Hammond, a friend and former neighbor of the Breiners. He was told that Sharon had gone to Norfolk to look for work. Breiner, accompanied by Mr. Hammond to whom he had made known his suspicions, investigated and discovered the family car, which was in Sharon's possession, at the Norfolk airport. Olson is a licensed pilot and operates an irrigation sprinkler manufacturing company, of which he is a major stockholder and officer. This corporation owns an airplane which Olson uses. As a result of further investigation, Breiner discovered that on August 9, 1972, Olson had rented a plane at another airport. Breiner suspected that Olson had met Sharon at the Norfolk airport and that they had gone to Omaha. Accompanied by Hammond, Breiner drove to Omaha and found the rented plane at Eppley Air Field. He then, by means of a multitude of telephone calls, located the motel at which Olson was registered. Breiner and Hammond then went to the motel and obtained the room number. Hammond (whose voice was unknown to Olson), by means of pretense, induced Olson to open the door. When it opened Breiner burst into the room, followed by Hammond. Olson was clad in his shorts. Sharon was in the bed and, if the testimony of Breiner and Hammond is believed, she was apparently unclothed.

Olson and Sharon admitted on the witness stand that on the occasion of their discovery in the motel in Omaha they had committed adultery. They both denied hving done so on any other occasion. Breiner and Hammond testified that at the motel both Olson and Sharon admitted previous acts of sexual intercourse between them. They also stated they loved one another. All this Olson and Sharon denied.

Olson and Sharon in their testimony admitted some of the suspicious circumstances to which Breiner testified, but gave explanations which were of an innocent nature. Sharon testified that she left her husband because he had physically and sexually abused her and had beaten the children. She further testified that Olson had not influenced her decision to leave her husband. Both she and Olson testified that the trip to Omaha was a spontaneous, unplanned event. Mrs. Hammond testified that Sharon had made arrangements on July 24, 1972, to leave the children with her on August 9, 1972. Sharon denied this. On rebuttal Mrs. Hammond testified that in 1971 Sharon had told her that Breiner was working so hard that he was unable to satisfy her sexual needs.

It is apparent that, except for the admitted act of criminal conversation in the Omaha motel, a jury question was presented on all issues.

On August 10, 1972, Breiner was fired by Olson and told to vacate the trailer house. Thereafter litigation related to compensation allegedly owed by Olson to Breiner resulted.

We will treat the assignments in the order in which we have previously stated them. The first assignment of error deals with Breiner's testimony concerning other litigation between him and Olson. The gist of this testimony was that when Olson told Breiner to vacate the trailer house forthwith following the Omaha incident, Breiner demanded that Olson first pay him the money which he had coming and Olson responded that he would 'be foolish to pay you so you would have some money to sue me.' Breiner then went on to testify, without any objection on the part of the defendant, that he had not yet been paid; that he had salary coming for...