Noteboom v. Savin

• Decision Date: 19 March 1958
• Citation: 213 Or. 583,322 P.2d 916
• Parties: Verdell NOTEBOOM, Respondent, v. Irving E. SAVIN, Appellant.
• Court: Oregon Supreme Court

Page 916

322 P.2d 916

213 Or. 583

Verdell NOTEBOOM, Respondent, v. Irving E. SAVIN, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Jan. 9, 1958.

Decided March 19, 1958.

C. R. Reiter, Portland, argued the cause for appellant. On the briefs were Stern, Reiter & Day, Portland, and C. Ray Johnson, Tillamook.

D. E. Kaufman, Tillamook, argued the cause for respondent. On the brief were McMinimee & Kaufman, Tillamook.

Before PERRY, C. J., and LUSK, WARNER and KESTER ^*, JJ.

LUSK, Justice.

This is an action for alienation of affections in which the plaintiff, Verdell Noteboom, recovered a judgment, and the defendant, Irving E. Savin, has appealed.

Error is predicated upon the admission in evidence of testimony given by the witness, Leona Wheately, as to declarations of Betty Noteboom, the them wife of the plaintiff, whose affections the defendant is charged with having alienated. The defendant was not present at the time the purported statement were made. Mrs. Wheatley was employed as a baby sitter by Mr. and Mrs. Noteboom at various times between December 1951 and November 1952, and the conversations to which she testified were held in the Noteboom home in Tillamook while she was so employed. During a portion of this period Mrs. Noteboom worked in a bakery of which the defendant was manager and part owner. The evidence tends to show that the purported declarations were made during the period of alleged alienation.

We are of the opinion that most of the testimony complained of was properly admitted, and that a portion to which specific reference will be made is of doubtful competence, but that as to the latter the question is not before us because it was not properly raised in the court below.

The record is as follows: Leona Wheatley was on the stand as witness for the plaintiff. She was asked to state what Mrs. Noteboom told her in regard to Mr. Savin. Counsel for the defendant interposed:

'Your Honor, I am going to object, first, because I feel that this is a matter, unless he is going to qualify it to show what the type of subject matter is, otherwise this witness can just go on rambling here. I think it is strictly hearsay, and out of the presence of the defendant. If it's for the purpose of showing some emotional situation of course that will have to go in, but I would still like to have a part----' Counsel for plaintiff said:

'* * * I will say to the Court that's the only purpose for which we want to elicit this information, to show a state of mind or a state of affection or a state of what effect the defendant's conduct had upon Betty Noteboom.'

The witness was then asked to state what Mrs. Noteboom said to her which indicated her feelings toward the defendant. Counsel for the defendant again objected, saying, 'I'm sorry, Your Honor, but I must object to this type of question.' The court then suggested that the matter be discussed in chambers, and the court and counsel retired to chambers for that purpose. Upon resumption of the trial in the courtroom the court stated that the objection was overruled, whereupon counsel for defendant said:

'In that case, Your Honor, I would like to have the record also show that I have a continuing, and will make at this time, a continuing objection to any testimony of this witness.'

The court said 'Yes.' The witness then, in answer to further questions of the same tenor as that previously asked, testified to statements of Mrs. Noteboom which tended to show her felling of admiration and affection for the defendant. This testimony was of the kind which we held to be 'eminently proper' in Saxton v. Barber, 71 Or. 230, 237-239, 139 P. 334. Then the following occurred:

'Q. Did she say anything in regard to gifts at all in response to how she felt about him, how he treated her and how it made her feel? State whether or not she ever had a TV set furnished for her?

'Mr. Johnson: I think this is a leading type of question, Your Honor.

'Mr. Savin: I would like to have that question stay.

'A. Yes; yes, she did say that when they were staying in the hotel in Seattle that he had a TV set brought up to the hotel room.

'Q. Did she express what her feelings were about that? A. Yes, she thought she was--it was very nice to have some one--she thought she was big because she had a TV set sent up to her. I mean, it was unusual, seemed like nobody else had been able to do that for her.

'Mr. Johnson: At this time, Your Honor, I want to renew my objection to the testimony of this witness and move that the answer of the witness be stricken as not being responsive, first, to the question; and not having anything to do with the issues in this case.'

The record then proceeds:

'The Court: The objection will be overruled. This matter comes within the general rule the Court discussed with counsel in Chambers. There was a portion of this answer that was in the nature of a conclusion but I don't know just exactly how to correct that situation.

'Mr. Johnson: My objection goes to the whole answer, Your Honor.

'The Court: Before we proceed, the Court will sustain the objection to the witness' last question, that part of it where she gave a conclusion about her impression; there was definitely a part of that answer that was this witness' conclusion and the Court will sustain the objection to that part of the answer.

'Mr. Kaufman: May I just say something? I think that, too, as being a reaction, in other words, comes within this rule because, just like the face being flushed with surprise or from embarrassment, so this witness noticed what the reaction was on Betty Noteboom at the time that she was talking about this TV set being brought up to her. It evidences that state to mind and so forth that comes within this very rule.

'The Court: Well, the point is that the witness under the Court's ruling can state what was said but she couldn't properly be able to put her own interpretation on it, you see, that would be a conclusion.'

In answer to further questions relative to the TV set, to which no objection was made, the witness testified:

'She was very happy; she was very proud to think that someone would have a TV set sent up to her room.'

Again the record discloses:

'Q. Will you please state for us whether or not Mrs. Moteboom has ever indicated to you her feelings or reactions in response to any advances made by Mr. Savin? A. Yes, she has.

'Mr. Johnson: I object to that as a presumptive question, advances by Mr. Savin, Your Honor. I think this is a very, very leading question, calls for a conclusion in her answer. I would like to have that question read by the Court Reporter so you can see the content of it. Any advances made by him is presumptive.

'The Court: I think the objection is well taken.

'Q. Will you please state whether or not Mrs. Noteboom has on any occasion expressed any emotion or feeling or reaction to her being present with Mr. Savin at any time? A. Well, if you mean in the office or where, any place?

'Q. Well, you just tell us if she made some statement in regard to her feelings about anything; take the office first if you want to. A. Well, she said that in the office Mr. Savin had kissed her and loved her. I don't know of anything else.

'Q. What was her feeling about that? A. Well, she was very proud, I means, she liked it. She wasn't mad.'

It is the general rule that, when an objection has once been acted upon and overruled, it need not be repeated to the same class of evidence since it may be assumed that ...