Disch v. Closset

• Decision Date: 02 March 1926
• Parties: DISCH v. CLOSSET. [a1]
• Court: Oregon Supreme Court

244 P. 71

118 Or. 111

DISCH v. CLOSSET. ^[a1]

Supreme Court of Oregon

March 2, 1926

Department 2.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by Rudolph Disch against Alfred A. Closset. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint in this case states two causes of action. The first cause of action is based on alleged criminal conversation and the second cause of action is for alienation of the affections of plaintiff's former wife. The issues were joined on the fourth amended complaint, the amended answer thereto, and the reply to said answer. A verdict was returned by the jury in favor of the plaintiff for the sum of $5,000. The plaintiff demanded $10,000 on both causes of action stated in his complaint, or a total of $20,000. The appeal is from the judgment entered on the verdict. The alleged errors assigned are 11 in number. The first 2 are based on admission of testimony over the objection of defendant. The third and fourth are based upon the ruling of the court on defendant's motions for a judgment of nonsuit and a directed verdict in favor of defendant respectively. The other objections are all based upon certain instructions given by the court to the jury and excepted to by the defendant. Additional facts necessary to understand the reasons for our conclusion will be given in the opinion.

J. J Fitzgerald, of Portland (George A. Hall, D. C. Lewis, and John F. Logan, all of Portland, on the brief), for appellant.

E. W. Eastman and L. E. Schmitt, both of Portland, for respondent.

COSHOW, J. (after stating the facts as above).

Exceptions 1 and 2 are based on the admission, over the objection of defendant, of testimony of a witness to the effect that plaintiff's wife, in May, 1922, stated that she was the wife of the defendant. It was admitted by the court as evidence of the attitude of plaintiff's wife, and was limited to that purpose by the court. A letter written by plaintiff's wife to him in December, 1921, was admitted over objection for the same purpose. At the time the testimony was received the judge explained to the jury that it must not be considered as evidence tending to prove the defendant guilty, but for the sole purpose of determining the state of the feelings of the then Mrs. Disch toward her husband, the plaintiff. This caution to the jury was repeated in the general charge given to the jury. That it was admissible for that purpose is settled by an overwhelming weight of authority. 30 C.J. 1139, 1140, 1143, § 1016; Coates v. Slusher, 222 P. 311, 109 Or. 612, 623; Pugsley v. Smyth, 194 P. 686, 98 Or. 448; Schneider v. Tapfer, 180 P. 107, 92 Or. 520; Saxton v. Barber, 139 P. 334, 71 Or. 230; valuable note in 3 Am. R. C. 1448, 1449, where a long list of authorities from other jurisdictions is collated; Waldron v. Waldron (C. C.) 45 F. 315, 15 S.Ct. 383, 156 U.S 361, 384, 39 L.Ed. 453.

There was sufficient competent evidence to submit to the jury the question of whether or not plaintiff had lost the affections of his wife. Other letters than the one mentioned above written to and received by the plaintiff from his wife indicated that she had much affection for plaintiff. She divorced him, and later married the defendant. That conduct indicates her loss of affection for the plaintiff. The value and weight of the evidence on that element was determined by the jury in favor of the plaintiff. It being a question of fact is thereby conclusively settled.

There is some competent evidence that defendant was the cause of plaintiff's loss. Plaintiff and his wife intermarried March 10, 1920. There is evidence that the defendant referred to the plaintiff's then wife as defendant's wife, and that defendant was living with her as her husband at that time. There were other circumstances testified to during the trial and extending over a period of more than two years from which the jury could properly infer that the defendant was guilty of adultery with the then wife of plaintiff, and that he was the cause of the alienation of her affections from the plaintiff. The evidence implicating defendant as the controlling cause is meager. Most of it was brought out in cross-examination of plaintiff while a witness in his own behalf. Much of it was hearsay, and would have been rejected if defendant had objected, but defendant himself adduced it. This evidence is supported by the marriage of defendant and the former Mrs. Disch six months after she secured a divorce from plaintiff. The association of defendant and his present wife for more than two years while she was the wife of plaintiff, together with their marriage, is some evidence of the cause of the estrangement. It would be of no benefit to go into details of the evidence. There are other circumstances tending to prove the cause of the alienation. They might have been explained. But defendant did not attempt to explain them. He offered no evidence, but rested the case made by plaintiff and the cross-examination of plaintiff's witnesses.

The defendant invokes the rule that only competent evidence will be considered in passing on a motion for nonsuit. Incompetent evidence admitted over objection should be disregarded in considering a motion for nonsuit. But incompetent evidence admitted without objection will be weighed at its value in determining a motion for nonsuit. Jacobsen v. Siddal, 3 A. R. C. 1335, 7 P. 108, 12 Or. 280, 53 Am. Rep. 360. Much less has defendant a right to object to consideration of evidence introduced by himself.

Exception was taken to the instruction of the judge in the following language:

"He need not have been the sole cause, but, if he contributed, then he must answer accordingly.

"If such a person is the entire cause of the alienation of the affections of the wife, if they shall be alienated, then he shall answer accordingly. If he is only partially the cause of it, then he must answer accordingly, although to a lesser degree than if he was altogether responsible."

In this connection the jury was also instructed:

"To entitle the plaintiff to recover, the jury must be satisfied by the greater weight of the testimony that the affections of the woman were lost to the plaintiff and that they were lost through, by, and because of the active intervention and proceedings of the defendant."

The rule in this as in most jurisdictions is that defendant must be the controlling cause of the alienation. Hughes v. Holman et al., 223 P. 730, 110 Or. 415, 429, 31 A. L. R. 1108; Pugsley v. Smith, 194 P. 686, 98 Or. 449, 459; 2 Schouler on Marriage, Divorce, Sep. and Dom. Rel. (6th Ed.) 1586, § 1334; 30 C.J. 1125, §§ 981, 984.

"* * * But it need not appear that the defendant was the sole cause of the separation." Schouler, above; 30 C.J. 1125, note 74, citing Pugsley v. Smith, above; 3 Am. R. C. 1437, where other authorities are collated under the subtitle "Controlling and Contributing Causes."

Charges to a jury as other matters of law involved in a litigation should be considered in the light of the particular facts of the case. The instructions complained of would have been more accurately in accord with the law of this state if the learned circuit judge had used the word "controlling" in the language quoted above, but, in the light of the facts adduced, and taking the charge as a whole, the instructions quoted above were harmless, if error at all.

The plaintiff protested to defendant about his intimacy with plaintiff's wife. The defendant did not deny his relations with her, but was rough and threatening toward plaintiff. As late as December, 1921, plaintiff and "the woman in the case" made plans to resume permanently their marital relations in Spokane. Plaintiff testified that his then wife promised to go with him to Spokane, and to break her relations with defendant; that he went to Spokane to get his wife away from defendant; that his wife promised to follow him. Instead of doing so, she revived her divorce suit, which had been dormant for more than a year. There was no evidence of any cause for the alienation of the woman's affection except the conduct of plaintiff and the conduct of the defendant. The alleged abusive conduct of the plaintiff was not proved to the satisfaction of the jury.

"The defendant will not be exonerated merely because he is less blamable than the injured spouse, and will incur liability by preventing a reconciliation between spouses estranged through the misconduct of one." 30 C.J. 1126, §§ 984, 985.

The record of the divorce referred to was introduced by defendant as a part of the cross-examination of plaintiff. The defendant complains because the judge instructed the jury to consider the decree only and advised them not to read the other papers and documents connected with it. Defendant contends that the divorce, having been granted on default of the plaintiff here, was a solemn admission of all the charges in the divorce complaint. The circuit judge correctly advised the jury. A divorce granted subsequently to acts of criminal conduct or alienating affections is not a defense, but was admissible in mitigation of damages. Cole v. Johnson et al., 205 P. 282, 103 Or. 319, 338; Roberts v. Cohen, 206 P. 295, 104 Or. 177; Waldron v. Waldron (C. C.) 45 F. 315; 15 S.Ct. Rep. 383, 156 U.S. 361, 384, 39 L.Ed. 453; 2 Schouler on Marriage, Divorce, Sep. and Dom. Rel. (6th Ed.) 1592, § 1337, n. 70.

The case of Bergman v. Solomon, 136 S.W. 1010, 143 Ky. 581, is not in point, because the complaining spouse, as defendant in the divorce suit, had filed an answer making some allegations which were received in the action for alienation as admissions against interest. The record of the divorce proceeding was not a bar. The court said in its opinion:

"The defendant offered

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