Goodeve v. Thompson

• Decision Date: 02 December 1913
• Citation: 136 P. 670,68 Or. 411
• Parties: GOODEVE v. THOMPSON.
• Court: Oregon Supreme Court

136 P. 670

68 Or. 411

GOODEVE v. THOMPSON.

Supreme Court of Oregon

December 2, 1913

Department 2.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by Helen M. Goodeve against Robert H. Thompson, Jr. From a judgment for plaintiff, defendant appeals. Reversed and remanded for further proceedings.

This is an action for a breach of promise of marriage; the complaint alleging a promise of marriage by the defendant and acceptance by plaintiff, and that on September 30, 1911, the defendant repudiated the said promise and refused to marry the plaintiff, and praying for a judgment for $50,600. The answer denies that defendant promised to marry the plaintiff and alleges that she was incapable of contracting marriage at that time, having a husband living. The case was tried before a jury, and a verdict rendered for the plaintiff, assessing her damages at $50,000, and from a judgment thereon the defendant appeals.

Samuel White, of Portland (Sheldon & Huntington and John Manning all of Portland, on the brief), for appellant.

Hall S Lusk, of Portland (Dolph, Mallory, Simon & Gearin, of Portland, on the brief), for respondent.

EAKIN J. (after stating the facts as above).

There are five assignments of error. The first two relate to the admission in evidence of testimony of the witness MacLean to the effect that in September or October, 1911, the defendant said to him that he had been after a girl for approximately 10 years, and that he had finally succeeded in landing her. The witness could not say that the remark related to the plaintiff, but that the girl referred to had come from Tacoma or Vancouver; he did not remember which. This statement was communicated to plaintiff as having reference to her, and she talked it over with the defendant in the presence of Gaut. Plaintiff had returned from Vancouver about that time and was in Portland, and defendant was associating with her. The circumstances were sufficient to permit the testimony to go to the jury as to whether or not the defendant had reference to the plaintiff.

The third and fourth assignments of error relate to the action of the court in reproving the witness Terry in the presence of the jury, to which the defendant now excepts. In the absence of proof of what did take place, or of what was the misconduct of the witness, we must accept the statement of the judge as to the circumstances calling for the reproof. The witness was reproved by the judge at least twice, once for including argument in his testimony, and, again, for nodding his head and making demonstrations constantly in the courtroom. Evidently the judge thought he was attempting to exert an influence on the jury or the witnesses, and, if so, it was the court's duty to reprove him and prevent such conduct. There is nothing in the record that discloses error in that regard.

The only other assignment of error relates to the denial of the defendant's motion to set aside the judgment and to grant a new trial. Three grounds are assigned: (1) Newly discovered evidence material to the defense, and which he could not with reasonable diligence have discovered...