Miller v. Pearce

• Decision Date: 09 January 1913
• Citation: 86 Vt. 322,85 A. 620
• Parties: MILLER v. PEARCE.
• Court: Vermont Supreme Court

85 A. 620

86 Vt. 322

MILLER

v. PEARCE.

Supreme Court of Vermont. Rutland.

Jan. 9, 1913.

Exceptions from Rutland County Court; E. L Waterman, Judge.

Action by Jennie E. Miller against Emma O. Pearce. There was a judgment for plaintiff, and defendant brings exceptions. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

T. W. Moloney, of Rutland, for plaintiff.

William W. Stickney, John G. Sargent, and Homer L. Skeels, all of Ludlow, for defendant.

ROWELL, C. J. This is case for alienating the affections of plaintiff's husband. It was proper to allow Cahee to testify to the value of the defendant's house, for exemplary damages were claimed. Rea v. Harrington, 58 Vt. 181, 188, 2 Atl. 475, 56 Am. Rep. 561.

It was also proper to allow the witness Bresee to say that the occurrence to which he testified about the defendant motioning plaintiff's husband into Baker's drug store and there drinking soda with him was the subject of remark between him and Baker, for it specified a ground for his recollection and tended to strengthen it. 1 Wig. Ev. § 730. This rule is illustrated and its limitations stated in Detroit, etc., R R. Co. v. Van Steinburg, 17 Mich. 99. The same may be said of Howland's testimony that the presence of the defendant on a street in Brandon at a certain time was the subject of remark in a certain office there.

The plaintiff's husband was a witness for the defendant, and testified that his relations and associations with her were merely the friendly relations and associations of a gentleman and a lady, and entirely proper in all respects, and always with due regard to propriety. He also testified that he took a lease of defendant's barn at one time, and kept his horses there. On cross-examination he said that this suit was pending when he took the lease and moved in his horses, which, it appeared, he took care of himself mornings and nights. The cross-examiner was then allowed to elicit from him that he knew when he took the lease that there had been and was public discussion and sentiment about his associations with the defendant, and that he testified about a year after he brought a petition for divorce against his wife, which was while this suit was pending, that said publicity had decreased his business more than threefold. Large scope is allowed to cross-examination; the extent of it in a given case being left largely to the discretion of the trial court. 2 Wig. Ev. § 944; Stevens v. Beach, 12 Vt. 587, 36 Am. Dec. 359; Hathaway v. Crocker, 7 Metc. (Mass.) 266. Here the cross-examination was well within the discretion of the trial court if not within the right of the defendant, and so no error.

The defendant called the officer who served the petition for divorce on the plaintiff, and showed by him a conversation he had with her at the time in the house and the presence of Miss Griswold. The plaintiff called Miss Griswold in rebuttal to testify to that conversation. The defendant objected that the officer could not be impeached without first inquiring of him about it. The officer not being present at the time, the court said that the witness might be examined and the officer called later if necessary, and thereupon the witness was examined. Later, the officer was called by the plaintiff, and examined by both sides as to what was said. The course taken by the court was entirely discretionary, and so no error here.

Nor was it error to exclude talk to the plaintiff by Miss Griswold in which the officer did not participate and to which the plaintiff made no reply, especially as it does not appear what Miss Griswold said, nor that any unfavorable inference could be drawn against the plaintiff because of her silence.

The defendant seasonably moved for a verdict, because there was no evidence tending to support the declaration; none tending to show that defendant interfered, or in any way undertook or tried, to alienate the affections of plaintiff's husband, and because the entire evidence showed that the plaintiff was entirely estranged from her husband before the commencement of his acquaintance with the defendant This motion was rightly overruled. We take no time with the last ground of it, for, if true, it would not defeat recovery, but go only in mitigation of damages. Fratini v. Caslini, 66 Vt. 273, 29 Atl. 252, 44 Am. St. Rep. 843; Lewis v. Roby, 79 Vt. 487, 65 Atl. 524, 118 Am. St. Rep. 984.

The other ground of the motion is not well founded, for the testimony on the part of the plaintiff clearly tends to show what the motion says it does not, namely, that the defendant did interfere, and did undertake and try to alienate the affections of plaintiffs husband.

The defendant requested a charge that, in order to recover, it must affirmatively appear that she was the seducer and enticer, and that the plaintiff could not recover if it appeared that her husband enticed her into unlawful relations with him. The defendant excepted for noncompliance with this request, and now says that the court applied it only to "enticing, inducing, and persuading," whereas she had a right to have it cover "seducing" also, claiming that, unless she was the acting and seducing party, there could be no recovery. But "enticing, inducing, and persuading" by the defendant were certainly sufficient as to all the elements of recovery except the "unlawful relations" mentioned in the request, which we take to mean criminal conversation, and whether as to those relations seduction by the defendant was necessary to recover will be considered later.

The defendant also excepted to the failure to charge as requested that intentional alienation must be shown. But the charge shows a substantial compliance with this request. She...