Knight v. Willey, 256

• Decision Date: 07 January 1958
• Docket Number: No. 256,256
• Citation: 138 A.2d 596,120 Vt. 256
• Parties: Kenson A. KNIGHT v. Bernard H. WILLEY.
• Court: Vermont Supreme Court

Page 596

138 A.2d 596

120 Vt. 256

Kenson A. KNIGHT v. Bernard H. WILLEY.

No. 256.

Supreme Court of Vermont.

Jan. 7, 1958.

Richardson & Caldbeck, St. Johnsbury, for plaintiff.

James B. Campbell, St. Johnsbury, for defendant.

Before CLEARY, ADAMS, HULBURD and HOLDEN, JJ., and SHANGRAW, Superior judge.

HOLDEN, Justice.

The plaintiff has obtained a verdict in the amount of $5,500 against the defendant on the charge that the defendant, by persuasion, has wrongfully alienated the affections of the plaintiff's wife, Lillian Knight. There was no allegation of criminal conversation. The defendant presents exceptions to the admission of evidence, statement of plaintiff's counsel in argument and to the denial of defendant's motion to set aside the verdict.

The cause was submitted to the jury on sharply controverted facts. Regarding the factual controversy in a light most favorable to the verdict, it appears that the plaintiff and Lillian Knight were married September 24, 1949. Two children have been born of the marriage. Mrs. Knight maintained marital affection for the plaintiff until some time in 1954. At that time her attitude toward her husband underwent a marked change that coincided in point of time with the date when the defendant and Mrs. Knight became acquainted. From that time on the plaintiff's wife was frequently away from her home and family during late evening hours. Mrs. Knight and the defendant were often seen together unaccompanied in the defendant's automobile and riding horses in secluded areas during both daylight and evening hours. The defendant was an unusually frequent visitor at the Knight home. On occasions he had breakfast with Mrs. Knight after Mr. Knight had departed for work. The defendant had admitted in a conversation with the plaintiff that he had arranged a meeting with Mrs. Knight at Littleton, New Hampshire. On an occasion when the plaintiff protested to the defendant concerning the latter's courtship of Mrs. Knight, the defendant stated to the plaintiff that he had become very fond of the plaintiff's wife and children. The defendant transported Mrs. Knight in his automobile to assist her in investigating matters related to her domestic difficulties. The plaintiff and his wife no longer have any affection for each other and were living separate and apart at the time of the trial.

The exception to the action of the trial court in refusing to set aside the verdict is inadequately briefed as to that aspect of the motion that appealed to the trial court's discretion. The supporting brief states merely the defendant's contention, without aid of argument or supporting authorities to point out wherein the claimed abuse of discretion occurred. By reason of this inadequacy, no question is presented for review. Town of Randolph v. Ketchum, 117 Vt. 468, 471, 94 A.2d 410; Johnson v. Moore, 109 Vt. 282, 288, 196 A. 246.

The other reasons stated by the defendant in support of his motion are to the effect that there is no evidence in the case to justify the award to the plaintiff. This attack upon the verdict for want of supporting evidence is, in nature and substance, similar to a motion for a directed verdict. The ruling of the trial court must be sustained if the evidence, tested in a light most favorable to the prevailing party, supports the result reached by the jury. Laferriere v. Saliba, 119 Vt. 25, 30, 117 A.2d 380; Gould v. Gould, 110 Vt. 324, 331, 6 A.2d 24.

The evidence, thus considered, does not preclude a recovery by the plaintiff as a matter of law. On the contrary, the evidence presented warranted the conclusion that the defendant intentionally intruded and trespassed upon the marital relations of the plaintiff. Just and reasonable triers of the fact might well decide that the attentions paid to Mrs. Knight by the defendant had progressed sufficiently far beyond the limits of propriety to destroy, in part at least, the woman's affections for her husband. The jury were afforded an adequate basis by the evidence to determine that the defendant should respond in monetary damages for such harm as he may have done to the plaintiff's marital interests. Restatement, Torts, 1938, § 684; Gaudette v. Taylor, 108 Vt. 108, 109, 183 A. 335. The exception to the denial of the motion to set aside the verdict is without merit.

During the direct examination of the plaintiff as a witness it appeared that on the evening of July 27, 1956, the plaintiff was working at the Fairbanks Morse Plant in St. Johnsbury. His working hours were from 4 p. m. to 12:30 a. m. Over timely objection and exception by the defendant, the plaintiff was permitted to testify that he was called in from his work to the lumberyard gate to meet Mrs. Bernard Willey, the wife of the defendant. As a result of this meeting the plaintiff quit his work and went home to find his children alone in the Knight apartment. The plaintiff testified he waited at the apartment until shortly before midnight when he left for Newbury. Other than the fact that the plaintiff conferred with the defendant's wife, the defendant himself is in no way connected with the events recited. The defendant's objection to the evidence was on the ground that the line of inquiry called for hearsay and was immaterial and prejudicial.

From the testimony as given, no extrajudicial utterance appears. Whatever statement the defendant's wife made to the plaintiff was not given. The hearsay rule is not directly involved.

It is apparent, however, from the testimony elicited, that Mrs. Willey was disturbed by some event to call the plaintiff from his work at a late hour in the night. Her visit was sufficiently urgent to incite the plaintiff's suspicion and compel the plaintiff to quit his labor and return directly to his home to watch and wait for his wife's return. Evidence of Mrs. Willey's call at the plaintiff's place of employment was both improper and immaterial. The event as reported by the plaintiff was not connected to any act or participation by the defendant. The proof offered and received did not afford a basis for any rational inference related to the ultimate fact sought to be proved. Tyrrell v. Prudential Ins. Co., 109 Vt. 6, 21, 192 A. 184, 115 A.L.R. 392.

Although the nature of this action opens a broad field of inquiry and investigation, Rudd v. Rounds, 64 Vt. 432, 439, 25 A. 438, the circumstantial evidence relied upon must tend to connect the defendant with the wrong charged against him. Gero v. John Hancock Mutual Life Ins. Co., 111 Vt. 462, 471, 18 A.2d 154; State v. Ryder, 80 Vt. 422, 426, 68 A. 652.

Although Mrs. Willey was not called as a witness, the import of this testimony was clearly prejudicial. By implication, this testimony brought to the attention of the jury that she was angered and suspicious of the defendant's association with Mrs. Knight. Further, it manifested her active sympathy for the plaintiff's cause. With the Court's approval, the way was opened for indulgence in speculation and conjecture to the defendant's prejudice. Gero v. John Hancock Mutual Life Ins. Co., supra, 111 Vt. at page 471, 18 A.2d at page 158. This exception is sustained.

The defendant's second exception developed in the course of cross examination of the plaintiff. Counsel for the defendant inquired of the witness if he had idly stood by on an occasion about November 2nd when Mrs. Knight was struck down by the plaintiff's brother during an altercation in Bradford. Plaintiff's counsel objected on the ground that this event occurred after the alienation and separation had occurred. The question was excluded over the defendant's offer to show this conduct by the plaintiff in mitigation of damages.

The admissibility of declarations and statements concerning the marital relations of the plaintiff and his alienated spouse is confined to statements made before the claimed interference developed. The reason for the restriction is to guard against possible collusion. The rule and the reason underlying it were recently stated in Parker v. Hoefer, 118 Vt. 1, 17, 100 A.2d 434, 38 A.L.R.2d 1216, following Fratini v. Caslini, 66 Vt. 273, 275, 29 A. 252.

The reason for the restriction disappears when a specific act of misconduct on the part of the plaintiff toward his wife is offered in mitigation of damages. In the husband's action for alienation of his wife's affections the actual character of both parties to the marriage is material to the issue being tried. 1 Wigmore, Evidence, 3rd Ed., § 211. The husband's marital misconduct and improprieties are the proper subject for consideration by the jury even after the litigation has commenced. It affords no bar to a recovery in this jurisdiction. However, the jury may properly consider it to determine how sensitive the plaintiff is to the marital injury claimed,--how real is the agony for which he seeks recovery. Shattuck v. Hammond, 46 Vt. 466, 468-471. See also annotation, 68 A.L.R. 560.

The scope of cross examination is generally within the discretionary control of the trial judge. Bradley v. Kelley & Trustee, 105 Vt. 478, 483, 168 A. 554; Merrihew's Adm'r v. Goodspeed, 102 Vt. 206, 211, 147 A. 346, 66 A.L.R. 1109. But where the witness is a party, there is a right to cross examine on any material matter whether covered by direct examination or not. Macauley v. Hyde, 114 Vt. 198, 200, 42 A.2d 482; Merrihew's Adm'r v. Goodspeed, supra, 102 Vt. at page 211, 147 A. at page 348; Swerdferger v. Hopkins, 67 Vt. 136, 147, 31 A. 153. The exclusion of the question was error.

The next exception by the defendant occurred in the course of the same cross...