Daniels v. Barker

• Decision Date: 01 June 1938
• Citation: 200 A. 410
• Parties: DANIELS v. BARKER et al. (two cases).
• Court: New Hampshire Supreme Court

200 A. 410

DANIELS

v. BARKER et al. (two cases).

Supreme Court of New Hampshire. Grafton.

June 1, 1938.

[Copyrighted material omitted.]

[Copyrighted material omitted.]

Transferred from Superior Court, Grafton County; Burque, Judge.

Actions for alienation of affections and conspiracy to alienate affections by Martha L. Daniels against Adah Barker and another, which were tried jointly to a jury. Verdicts for defendants, and plaintiff filed two bills of exceptions, of which one was allowed and the other disallowed, to the disallowance of which the plaintiff excepted, and the case was transferred by the trial judge.

New trial.

Actions, of alienation of affections and of conspiracy to alienate them. Joint trial of the two actions by jury and verdicts for defendants. The plaintiff filed two bills of exceptions. One was allowed and to the disallowance of the other she excepted. They relate to evidence, instructions, and supervision of the jury, and are specified in the opinion. Transferred by Burque, C. J.

Fred A. Jones, of Lebanon, and J. Weston Allen, of Boston, Mass., for plaintiff. Paul Gilioli, of White River Junction, Vt. (Louis A. Perkins, of Windsor, Vt., on the brief), for defendants.

ALLEN, Chief Justice.

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I. The plaintiff alleges wrongful interference in the marital relations between her and her former husband. The defendants are his sister-in-law and nephew, and are mother and son. The plaintiff's husband was well along in years when he married her. It is her claim that the defendants were actuated by mercenary motives, to obtain her husband's property at his decease, as a reason for their alleged wrong.

The defendant sister-in-law testified that the relations between the husband and herself had been pleasant and friendly during a time preceding his marriage and continuing after it. The plaintiff offered a witness in rebuttal to testify that before the marriage the sister-in-law exhibited hard feelings against her brother-in-law to the extent of neglect to obtain much needed medical assistance for him when he was ill with pneumonia, and while she was visiting him. The offer of testimony from the witness also included a statement of the husband to him that his sister-in-law was trying to induce him to make a will, as the object of her visit, and his order to the witness to take measures to have her leave his home.

The evidence was offered, among other assigned reasons, to "dispute" her testimony. It was excluded as not "necessary," and as relating to a time before the marriage. In clarification of the offer, it was stated to be rebuttal upon the issue of relations between her and her brother-in-law and upon the issue of her credibility.

What the relations were, was a collateral issue, and how far evidence upon such an issue "should be carried for the purpose of disparaging a witness" is a question of fact determinable at the trial and not subject to revision. Spalding v. Merrimack, 67 N.H. 382, 383, 36 A. 253, and cases cited. But although the issue was collateral, it was a material one. The sister-in-law's state of mind and attitude towards her brother-in-law, as well as his feelings towards her, were evidence on the issue of motive to alienate. The claim of relations of amity tended to disaffirm an improper motive of benefit from his estate, and evidence rebutting that of the claim was therefore competent. And relations between them before his marriage threw more than faint and remote light to show what they were after the marriage.

The exclusion of the evidence left that of the defendants upon the issue free from attack and gave them an undue benefit. Even if the evidence of prior relations introduced by the defendants were incompetent or admissible only in discretion, yet having been admitted, it stood open to contradiction in rebuttal. Furbush v. Goodwin, 25 N.H. 425, 448; Dame v. Kenney, 25 N. H. 318, 324, 325.

The offered evidence included statements to the witness by the plaintiff's husband. Except for the purpose of disclosing his feelings towards his sister-in-law, they were incompetent. The evidence of his order that she be made to leave his home was thus competent, but his statement that her visit was made to induce him to make a will was a narrative within the rule against hearsay evidence. The statement imported no inference of its truth. As thus limited, the exception is sustained.

II. At the conclusion of the charge the court informed the jury that if they needed further instructions, he would be at hand to receive their questions only for a short time. It is understood that plaintiff's counsel were present and heard the jury thus notified. No exception was then taken, and the issue of impropriety was first raised in the motion to set aside the verdicts. Consent to the notice was given by non-objection, and the exception is groundless. Since the plaintiff was present and "did not object to the procedure adopted", she is estopped from complaining. Perreault v. Allen Oil Company, 87 N.H. 306, 307, 308, 179 A. 365, and cases cited.

It follows that the plaintiff is also barred from complaint that the court was not available to restate its charge to the jury on their request for a copy of it, or that a copy was not read to them. The announced departure of the court implied that the jury would receive no further instructions thereafter or restatement of any given.

III. Other grounds for the motion to set aside the verdicts are of irregularities in the supervision of the jury. The defendants' position that the averments in the plaintiff's bill of exceptions relating to them are not to be taken as facts found on hearing by the trial court, is ill premised. It is assumed that on the motion to vacate the verdicts both parties were heard and offered, or had opportunity to offer, evidence upon any issues of fact presented, and the statute (P.L. c. 315, § 8) requires the trial court to allow a bill of exceptions only if it is "conformable to the truth of the case". The averments in the bills of exceptions are required to be accepted as facts.

While the jury were deliberating, they asked the court what date should be used in considering an exhibit which the record does not identify. The question and its answer were both in writing and plaintiff's counsel were not aware of the incident until after the verdicts were returned.

It is not required that counsel be present during communications between the jury and court. If not made in open court, "written instructions may be sent to the jury without notice to counsel when the court is not in session, to be returned and filed with the verdict." Rizzoli v. Kelley, 68 N.H. 3, 44 A. 64, and cases cited. The essential point is that to have the trial fair the parties are entitled to be informed of all matters incident thereto which may affect their rights.

The failure here to return the written question and answer with the verdict was rendered harmless and without prejudice by their subsequent filing. But it is uncertain to what exhibit they related. The question and answer are not intelligible except with production of the exhibit. However, it is inferred from the record that the court was not requested to identify the exhibit, while a request if made would have been granted. Due diligence in the assertion of rights is demanded in the discharge of the duties of counsel. The plaintiff relies upon lack of knowledge, but she gained knowledge of the communication, and not pursuing inquiry to ascertain complete information about it, her charge of prejudice is not maintainable. In analysis, learning of the communication, she did not seek to ascertain what the exhibit was, and she has not shown that inquiry would not have produced disclosure.

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