Miller v. Pearce

Citation86 Vt. 322, 85 A. 620
Case DateJanuary 09, 1913
CourtUnited States State Supreme Court of Vermont
85 A. 620
86 Vt. 322

MILLER
v.
PEARCE.

Supreme Court of Vermont. Rutland.

Jan. 9, 1913.


85 A. 621

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...

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22 practice notes
  • Woodhouse v. Woodhouse
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 7, 1925
    ...§ 974. And, where alienation is by means of adultery, it seems that malice in law is presumed from the wrongful act. See Miller v. Pearce, 86 Vt. 322, 85 A. 620, 43 L. R. A. (N. S.) 332. However, there is this difference in the two classes of cases, which is evidential merely: In case of a ......
  • Cummings v. Conn. Gen. Life Ins. Co.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 2, 1928
    ...of discretion does not appear. Smith v. Reynolds, 94 Vt. 28, 37, 108 A. 697; State v. Meehan, 86 Vt. 246, 249, 84 A. 862; Miller v. Pearce, 86 Vt. 322, 324, 85 A. 620, 43 L. R. A. (N. S.) At the close of all the evidence, the defendant moved for a directed verdict in its favor, and excepted......
  • Saliba v. N.Y. Cent. R. Co.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 8, 1929
    ...is not revisable here. Shores v. Simanton, 99 Vt. 191, 195, 196. 130 A. 697; State v. Long, 95 Vt. 485, 491, 115 A. 734; Miller v. Pearce, 86 Vt. 322, 324, 85 A. 620, 43 L. R. A. (N. S.) 332. As to the first question, the court expressly ruled as a matter of discretion; as to the second, we......
  • Parker v. Hoefer, No. 1245
    • United States
    • October 6, 1953
    ...conversation by the wife, except that it makes no different whether the defendant was the seducer, or the seduced. Miller v. Pearce, 86 Vt. 322, 327, 85 A. 620, 43 L.R.A.,N.S., 332. This case is also in line with the rule stated in § 688, Rest. of Torts, that 'the condonation or forgiveness......
  • Request a trial to view additional results
22 cases
  • Woodhouse v. Woodhouse
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 7, 1925
    ...§ 974. And, where alienation is by means of adultery, it seems that malice in law is presumed from the wrongful act. See Miller v. Pearce, 86 Vt. 322, 85 A. 620, 43 L. R. A. (N. S.) 332. However, there is this difference in the two classes of cases, which is evidential merely: In case of a ......
  • Cummings v. Conn. Gen. Life Ins. Co.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 2, 1928
    ...of discretion does not appear. Smith v. Reynolds, 94 Vt. 28, 37, 108 A. 697; State v. Meehan, 86 Vt. 246, 249, 84 A. 862; Miller v. Pearce, 86 Vt. 322, 324, 85 A. 620, 43 L. R. A. (N. S.) At the close of all the evidence, the defendant moved for a directed verdict in its favor, and excepted......
  • Saliba v. N.Y. Cent. R. Co.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 8, 1929
    ...is not revisable here. Shores v. Simanton, 99 Vt. 191, 195, 196. 130 A. 697; State v. Long, 95 Vt. 485, 491, 115 A. 734; Miller v. Pearce, 86 Vt. 322, 324, 85 A. 620, 43 L. R. A. (N. S.) 332. As to the first question, the court expressly ruled as a matter of discretion; as to the second, we......
  • Parker v. Hoefer, No. 1245
    • United States
    • October 6, 1953
    ...conversation by the wife, except that it makes no different whether the defendant was the seducer, or the seduced. Miller v. Pearce, 86 Vt. 322, 327, 85 A. 620, 43 L.R.A.,N.S., 332. This case is also in line with the rule stated in § 688, Rest. of Torts, that 'the condonation or forgiveness......
  • Request a trial to view additional results

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