Kelley v. Kelley
| Citation | 34 N.E. 1009,8 Ind.App. 606 |
| Decision Date | 12 October 1893 |
| Docket Number | 927 |
| Parties | KELLEY v. KELLEY |
| Court | Court of Appeals of Indiana |
Petition for a rehearing overruled Jan. 13, 1894
From the Harrison Circuit Court.
Judgment affirmed.
J. V Kelso and C. D. Kelso, for appellant.
J. K Marrs, for appellee.
One of the errors relied upon is the sustaining of a demurrer to the appellant's second paragraph of answer. It is conceded that the facts pleaded in this paragraph were admissible under the general denial, which was also pleaded. The error, if any, was therefore harmless. Elliott's App. Proced., section 637, and cases cited.
Another alleged error is the overruling of the joint motion of appellant and his co-defendant for a new trial. The appellant was sued jointly by the appellee with another for damages for an alleged assault and battery. The defendants answered separately the general denial, but the jury returned a joint verdict against the two for $ 3,200.
The defendants jointly moved for a new trial. The court sustained the motion as to the other defendant, but overruled it as to the appellant, on condition that appellee would remit $ 700 of the amount found in the verdict, which was done.
It is insisted by appellant's counsel, in argument, that the granting of a new trial to Marrs was a decision by the court that there was a failure of proof as to him, at least, and this being so a new trial should have been granted both, for the reason that when the evidence fails as to one of the parties against whom a verdict has been rendered, a joint motion for a new trial by all must be sustained.
In support of this contention counsel cite Sperry v. Dickinson, 82 Ind. 132, and Graham v. Henderson, 35 Ind. 195, and it must be conceded that these cases go far toward sustaining the position assumed.
We have reached the conclusion, however, after careful consideration, that the doctrine contended for is in conflict with the rule adhered to in many cases, since those above referred to were decided, viz., that a party can not be heard to complain of the overruling of a joint motion for a new trial as to him, unless the motion is well taken as to all the parties who join in making it; and, where the rights of the parties are separate and distinct, the party seeking a new trial should file a separate motion therefor. Elliott's App. Proced., section 839, and cases cited.
Our conclusion, therefore, is that there is no available error in the action of the court sustaining the motion for a new trial as to Marrs and overruling it as to the appellant.
It is further contended that the damages are excessive. As we have seen, the verdict was for $ 3,200, of which $ 700 was remitted. The theory of the defense was that the appellant found the appellee, his wife, in bed with, and in the embraces of, another man, and that, therefore, even if he inflicted the injuries upon her of which she complains, the provocation was so great that it should naturally and properly palliate the offense so as to make it but little more than a nominal one. Moreover, it is insisted that no witness testified to the striking except the appellee herself, and that her appearance and conduct subsequent to the difficulty was such as to lead to the conclusion that no serious injury was sustained by her.
On the other hand, there was evidence tending to show that the man with whom the appellee was found in bed went there at the instance and request of the appellant, without the invitation and against the desires of the appellee, and for the purpose of enabling the appellant to secure evidence upon which to base an action for a divorce, and that the appellant inflicted serious injuries upon the appellee. If the theory of the appellee is the true one, and the jury by the verdict in effect found that it was, we can not say that $ 2,500 is in excess of what the appellee was entitled to recover.
A man who would thus deliberately debauch and bring shame and dishonor upon the wife he engaged to honor and protect deserves no commiseration at the hands of a court or jury.
It is true the gist of the action was not for the alleged misconduct of the appellant in bringing obloquy and disgrace upon his wife, but for an assault and battery, and yet, if the latter was established, we can not say that the jury had not the right to take into consideration the entire circumstances leading up to the point of the striking, and this would, of course, include the acts of the appellant in setting the trap into which he intended his wife to fall.
It is not our province to determine which of the theories was the correct one, but the jury having adopted the one relied upon by the appellee, and there being some evidence to support it, we would not feel justified in holding that the result reached was an erroneous one.
The rule that where the evidence is at all conflicting upon the material questions in issue this court will not undertake to weigh or determine it, is too well established to need the citation of authority in its support, and it is likewise settled beyond controversy, that unless the amount of the verdict is so large as to lead to the conclusion that it must have been the result of prejudice, partiality, or corruption, the judgment based upon it will not be disturbed on appeal. Lake Erie, etc., R. W. Co. v. Acres, 108 Ind. 548, 9 N.E. 453; Farman v. Lauman, 73 Ind. 568; Louisville, etc., R. W. Co. v. Pedigo, 108 Ind. 481, 8 N.E. 627.
A further ground for a new trial contained in the motion made in the court below was that the defendants were surprised by the testimony of the plaintiff. In this connection it is claimed that it was shown by affidavits filed in support of the motion that in a divorce proceeding between the appellant and appellee the latter testified that her husband did not strike, beat, or kick her, and in effect that appellant did not commit any assault and battery upon her whatever. While we find the affidavits substantially as claimed, it is also true that counter affidavits were filed by the appellee tending to show, not only that she was injured, but that she testified to such injuries upon the trial in the action for divorce.
Under the third subdivision of the section of the civil code defining causes for a new trial, accident or surprise against which ordinary prudence could not have guarded is made a ground upon which a new trial may be granted. R. S. 1881, section 559.
But inasmuch as the party who claims to be surprised by the testimony of a witness might have procured a continuance on account of the surprise, if he had moved for it and shown proper grounds, a strong and clear case must be made before a reversal will be grounded upon such cause. Louisville, etc., R. W. Co. v. Hendricks, 128 Ind. 462, 28 N.E. 58; Scheible v. Slagle, 89 Ind. 323.
We do not think this is such a case. As we have seen, there was some evidence tending to show that the appellee did testify on the divorce trial that the appellant had struck and beaten her. Moreover, we do not think the appellant has brought himself within the rule that he must show...
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