Button v. Knight

• Decision Date: 01 November 1921
• Docket Number: 323
• Parties: WORTHEN BUTTON v. W. G. KNIGHT
• Court: Vermont Supreme Court

115 A. 499

95 Vt. 381

WORTHEN BUTTON v. W. G. KNIGHT

No. 323

Supreme Court of Vermont

November 1, 1921

May Term, 1921.

ACTION OF TORT for the alienation of the affections of the plaintiff's wife. Plea, the general issue. Trial by jury at the September Term, 1919, Washington County, Butler, J presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

J Ward Carver and F. L. Laird for the defendant.

Alland G. Fay for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

POWERS

As submitted to the jury, the case charges the defendant with alienation by enticement. The verdict was for the plaintiff, and the defendant alleges error.

Mrs. Haywood, the mother of Mrs. Button, wife of the plaintiff, was a witness for the defendant. After testifying that she had visited at her daughter's at different times, she was asked in direct examination if Mrs. Button had complained to her of the plaintiff's conduct toward her. Upon plaintiff's objection, the question was excluded, and an exception saved.

It had appeared that Mrs. Button left her husband in October, 1917, and never returned to him. The plaintiff claimed that her action was the result of the defendant's influence over her. The defendant claimed that she left the plaintiff on account of his misconduct.

It is quite probable that the examining attorney intended the question under consideration to refer to the occasions when Mrs. Haywood was visiting her daughter, as she had just testified, and that these visits were at a time when Mr. and Mrs. Button were living together, and before the defendant had interfered with their relations. If so, the question would relate to admissible matter. Fratini v. Caslini, 66 Vt. 273, 29 A. 252, 44 Am. St. Rep. 843. But this does not affirmatively appear. The question was not limited to that time. The ruling was in plaintiff's favor, and we must construe the record in a way to support it, if it can reasonably be done. The question, then, was unlimited as to time, and inadmissible. As shown by the case just cited, complaints of this character made after the trouble over or relations with the defendant began are to be excluded.

The same witness testified that Mrs. Button had lived with her since she left her husband, and that the defendant had made his home there during a part of that time. She was asked if she had seen any improper conduct between her daughter and the defendant, and replied that she had not. An objection being then made, the court ruled that the question was improper, as calling for the conclusion of the witness, and that the evidence might be "left out," which counsel treat as meaning that the answer be stricken out. While, in a way, the question called for the witness' opinion, since it involved her construction of the conduct of the parties, it comes within the exception of the rule excluding opinion evidence. It cannot be distinguished from the evidence involved in Re Clogston's Est., 93 Vt. 46, 106 A. 594, wherein we held that one might testify that he never saw a designated person misuse or abuse another, or other examples of this class of testimony collected in State v. Felch, 92 Vt. 477, 105 A. 23. Nevertheless, the ruling under consideration was not erroneous. No foundation for this evidence was laid. Fowlie's Admx. v. McDonald, Cutler & Co., 82 Vt. 230, 72 A. 989. While such testimony is not the statement of an opinion in a full sense of the term, and in many cases partakes largely of the character of a statement of fact, it is treated like an expression of an opinion by a lay witness, and a foundation must first be laid. Judge PECK correctly says, in Bates v. Sharon, 45 Vt. 474, that in the circumstances there specified the witness is allowed to add his conclusion, judgment, or opinion. The requirement of the rule that, before such evidence is receivable, the witness must state, so far as practicable, the facts and circumstances on which he bases his conclusion, is expressly recognized in Re Clogston's Will, supra, for this was assumed in support of the ruling under review. Such facts and circumstances, be they few or many, must first be testified to by the witness. Hathaway's Admr. v. National Life Insurance Co., 48 Vt. 335.

It appeared that at the time the trouble between the Buttons culminated, D. M. Cutler and his wife lived just across the road from the plaintiff's house, and that the defendant's buildings were a few rods below on the same side of the road as the plaintiff's, and in plain sight from the Cutler place; that on a certain occasion, Mrs. Button went to the defendant's place, and, instead of going down the road, she went through the fields and woods, and approached the defendant's buildings from the rear. In argument, counsel for the plaintiff asserted that the route taken by Mrs. Button at this time took her out of the sight of the neighbors. To this the defendant excepted. The argument was justified by the evidence. It appeared from the testimony of several witnesses that one going to the defendant's by the route selected by Mrs. Button would be out of the sight of the Cutlers for much, if not all the way. So far as appears, the Cutlers were the only neighbors that could have been referred to.

The evidence tended to show that the defendant had carried Mrs Button in his automobile to various places on different occasions after she left the plaintiff--usually on business connected with the divorce proceedings instituted by her. Counsel for the plaintiff argued that there was no evidence that the defendant had been paid a penny for the use of his car. To this the defendant excepted. The only evidence that the defendant was paid for any of this service was that Mrs. Haywood paid him for bringing Mrs. Button and her witnesses to Montpelier at the time the divorce case was tried. When this exception was taken, attention was called to this evidence, and counsel modified his statement by saying that all the record showed was that the defendant had received six dollars from Mrs. Haywood. In fact, the amount paid by Mrs. Haywood was...