Noteboom v. Savin
| Decision Date | 11 June 1958 |
| Citation | 326 P.2d 772,213 Or. 583 |
| Parties | Verdell NOTEBOOM, Respondent, v. Irving E. SAVIN, Appellant. |
| Court | Oregon Supreme Court |
Stern, Reiter, Day & Anderson and Philip A. Levin, Portland, and C. Ray Johnson, Tillamook, for the petition.
Before PERRY, C. J., and LUSK, WARNER and KESTER 1, JJ.
The defendant's petition for rehearing urges the following points: (1) that this court erred in permitting plaintiff to amend his complaint during the trial so as to allege that defendant had sexual intercourse with plaintiff's wife. It is asserted that the amendment is not supported by any competent evidence; (2) that we erred in holding that the question of the incompetency of certain testimony of the witness Leona Wheatley was not properly preserved; and (3) that the court should exercise its power to notice palpable error in order to avoid a gross miscarriage of justice 'under the circumstances of this case,' one of the circumstances pointed out being the amount of the verdict for punitive damages, to-wit, $25,000.
We will consider Point No. 1 last.
As to Point No. 2, we have re-examined the question and are satisfied that the ruling was correct. The authorities upon which we relied are not questioned, and no opposing authority has been cited. The rule which we applied for determining the sufficiency of an objection to evidence in the circumstances of this case in order to preserve the question for review by this court is well established. A similar ruling will be found in Hryciuk v. Robinson, Or., 326 P.2d 424.
As to Point No. 3, it may be granted that the verdict for punitive damages is large. Whether it is excessive is not for us to say. In a jury trial the determination of such matters is committed by our Constitution exclusively to the jury, and jurors at times have rather strong opinions about the gravity of the offense of breaking up another man's home. That, according to the evidence, was the wrong done to the plaintiff by the defendant. We do not, of course, pass on the weight of the evidence. But, since the appeal made to us is, as stated in the petition, 'in order to avoid a gross miscarriage of justice,' it is not amiss for us to say that the defendant's own testimony supported the charge.
Apart from this, there is no palpable error. On the contrary, the question where to draw the line in determining what testimony is and what is not an exception to the hearsay rule when declarations of the alienated spouse are offered in evidence in this class of cases, is sometimes one of great difficulty. Kuhnhausen v. Stadelman, 174 Or. 290, 148 P.2d 239, 149 P.2d 168, cited by the defendant, is far afield. In that case the trial judge told the jury in his instructions that the law in a malicious prosecution action, as established by this court, requires the judge to charge the jury as to what facts in evidence do or do not constitute probable cause, but that he did not agree with the law as so determined and accordingly he would leave the question to the jury. This was the fundamental error in that case that we deemed to be so palpable, as well as agregious, as to require us to notice it notwithstanding the absence of an exception.
In presenting Point No. 1 counsel have assumed that we did not rule on the merits of the question but declined to consider it because it was not before us. This is not the case, though there is something to be said for the view suggested. The amendment was offered to conform to the proof, and the only objection to it disclosed by the record was on the ground of surprise. In ruling on that objection the trial judge commented that the defendant had already submitted a requested instruction based upon the assumption that adultery was an issue in the case. Thus, the...
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...The objection, however, has efficacy only when the adverse ruling was erroneous. Noteboom v. Savin, 213 Or. 583, 589, 322 P.2d 916, 918, 326 P.2d 772. There is no doubt that all of the testimony sought to be suppressed was properly admitted by the trial court. While the witness testified th......
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