Parker v. Hoefer, 1245

• Decision Date: 06 October 1953
• Docket Number: No. 1245,1245
• Citation: 118 Vt. 1,38 A.L.R.2d 1216,100 A.2d 434
• Court: Vermont Supreme Court
• Parties: , 38 A.L.R.2d 1216 PARKER v. HOEFER.

Page 434

100 A.2d 434

118 Vt. 1, 38 A.L.R.2d 1216

PARKER v. HOEFER.

No. 1245.

Supreme Court of Vermont.

Oct. 6, 1953.

Ryan, Smith & Carbine, Rutland, for plaintiff.

Henry F. Black, White River Junction, Becker & Martin, New York, N. Y., for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CHASE, JJ.

SHERBURNE, Chief Justice.

This is an action for alienation of affections by enticement and criminal conversation. It comes here upon the defendant's exceptions after a verdict and judgment for the plaintiff.

It appeared in evidence that after the plaintiff and Robert Parker were married on April 26, 1933, they lived abroad most of the time until June 1940, where he was a foreign correspondent with the Associated Press. On the latter date, because of war breaking out, she returned to this country and he followed in about four months. From then on he was here with her and abroad off and on until the fall of 1943. In the winter following he was working here with UNRA and writing a book. He was with her in South Woodstock a part of the summer of 1944, except for about three weeks when he was away on an air transport command tour of the west. At the end of July he went to Cincinnati and she went out to join him in August and stayed a week househunting, and not finding a house returned to South Woodstock and her two children. While in Cincinnati on this occasion an old friend of both called her on the telephone and introduced her to the defendant, who thereupon invited her and her husband to a dinner party, but she did not accept because she was returning to South Woodstock. Whether her husband attended this dinner party does not appear, but he testified that in August he became acquainted with the defendant through this same friend. Finally Parker found a house in Cincinnati where he and his wife could live, and she went there with the children on September 19. Early in January, 1945, Parker left the plaintiff and went to the Gibson Hotel, the first of three hotels in Cincinnati at which he later lived. He returned home in March for a month, and then left permanently. The plaintiff obtained a divorce in Ohio in April, 1946, and Parker married the defendant on May 6, 1946, and she obtained a divorce from him in 1949.

The first point made by the defendant is the alleged improper conduct of plaintiff's counsel and of the court. We will take up the instances in the order briefed.

In the writ the defendant is referred to as 'Silvia Gould Thomson Parker, also known as Silvia Thomson Parker.' Because of her marriage to one Hoefer before the trial the plaintiff moved to amend her name by adding 'Hoefer.' The defendant had no objection if she was known as Silvia Gould Hoefer during the trial, but didn't like the word 'alias', and the court remarked that it didn't see as plaintiff's counsel needed to refer to that before the jury, and allowed the amendment and told him to refer to the defendant as Silvia Gould Hoefer, and plaintiff's counsel said that they did not intend to use the word 'alias' and didn't contend that defendant was going under an assumed name. Later plaintiff's counsel, without objection, told the jury that the defendant was Silvia Gould Thomson Parker Hoefer. 'The defendant is Silvia Gould Thomson as our evidence will show because Thomson was the name of her first husband, and Parker because Parker was the name of her second husband, and Hoefer because Hoefer was the name of her third husband.' Two other occasions are pointed out where the defendant was referred to by the above five word name, and it is pointed out where she was referred to as Silvia Gould Thomson, and where one of plaintiff's witnesses referred to the defendant as 'this Gould woman' and the 'Gould girl' and another referred to her as Silvia Gould, all without objection. Defendant's counsel sometimes referred to her as Silvia Gould Parker also.

Upon the voir dire, after it had appeared that the defendant was not in court, plaintiff's counsel inquired if any of the jury knew the defendant and stated that she was the daughter of Kingdom Gould. Upon objection being made the court ruled, subject to exception, that the plaintiff might inquire if any of the jurors knew the defendant's father or mother, and thereupon the jury was asked if any of them knew Mr. and Mrs. Kingdom Gould of New York, parents of the defendant. The nature and extent of the inquiries which may be made in the preliminary examination of jurymen is largely within the discretion of the trial court, and the exercise of its discretion will not be revised except in cases of its abuse. State v. Turley, 87 Vt. 163, 166, 167, 88 A. 562.

We find nothing in the transcript to support the statement in defendant's brief: 'It is apparent from the record that counsel for the plaintiff originally intended to go back in her lineal background and claim that she was in some way related to the fabled Jay Gould.'

In starting to read the deposition of Robert Parker to the jury plaintiff's counsel included the name of the parties as written on the caption 'Lorraine Wolcott J. Parker v. Sylvia Gould Thomson Parker alias Sylvia Gould Parker alias Sylvia Gould Hoefer.' To this the defendant objected with particular reference to the use of the word 'alias'. After a discussion the jury were instructed to pay no attention to this formal statement concerning the deposition. This instruction cured the error, if any, in the reading.

It is stated that defendant's counsel was not given a real opportunity for summation, that he was continually interrupted, falsely accused of mis-stating the record, and maliciously attacked with ill-founded and baseless charges. We are not told anything further about all this but are simply referred to certain pages in the transcript. This is inadequate briefing. Furthermore our attention is not called to any exception.

It is stated that the plaintiff was not above misleading the jury, because as to at least one of the books she testified her husband had written it is a matter of public record that it was published in the last year and could have had no relevance to the action before the court. Our attention is not called to any evidence as to when the book was published.

The last instance of alleged improper conduct was the conduct of the court in excluding a question asked the plaintiff by defendant's counsel. In asking the particular question defendant's counsel disregarded the court's prior express instruction. It is claimed that the court gave the jury the impression that defendant's counsel had acted improperly. The court was very lenient and if such an impression was given to the jury it resulted from the remarks of such counsel.

No improper conduct has been pointed out that could have prejudiced the jury.

The second point made by the defendant relates to the exclusion of certain portions of defendant's cross-examination in the deposition of Robert Parker. Three portions are quoted and briefed, and another is referred to. In 1934, shortly after the marriage of the plaintiff and Parker, they went to Paris to reside where he was attached to the Paris bureau of the Associated Press, and he went off alone on various business trips. Having testified in cross-examination that he did not accuse his then wife of having a boy friend while they lived in Paris, our attention is directed to the following in the deposition.

'Q. You did object to her going out with other gentlemen, did you not, alone? A. No. She never did it as far as I know.

* * *

* * *

'Q. If she did you did not know about it, is that right? A. No. I can't recall it--I will put it that way.

'Q. So now to-day you do not know whether you knew about it at the time or not, is that correct?

* * *

* * *

'A. No, it is not correct. I do not get these assumptions here; I think we had better start all over again. I do not know what this man is trying to ask me.'

All after the answer to the first quoted question was excluded, and the defendant excepted. All that the defendant claims under this exception is that she wanted to show that when the plaintiff had gone out to dinner with other men in Paris she had done so without her husband's knowledge. The matter excluded added nothing to the information given in the answer to the first quoted question. The scope and extent of cross-examination rests largely in the sound discretion of the trial court and its ruling is not reviewable in the absence of an abuse thereof. Gero v. John Hancock Mut. Life Ins. Co., 111 Vt. 462, 473, 18 A.2d 154. In this instance we see no such abuse.

Our attention is next directed to the following portion of the deposition.

'Q. Then up until August, 1944, from the time of your marriage in 1933, you had always been faithful to Lorraine Wolcott Parker, had you?

'The Witness: What do you mean by that? (Question read by the reporter.)

'The Witness: What do you mean exactly by that?

'Q. You do not understand the question? A. No.

'Q. Why are you smiling, Mr. Parker? A. Have I not a right to smile?

* * *

* * *

'Q. And you now know what the word 'faithful' means? A. I know what you mean by it.

'Q. You didn't know that before, did you? A. I didn't know what you meant by it.'

The defendant excepted because the question and answer about smiling were struck out, and says it would have suggested to the jury that the witness was not only obviously avoiding the issue but was attempting to be 'clever' with counsel, and that the jury might well and properly have drawn certain important conclusions as to the marital relationship between the parties from this testimony.

Following the answer about smiling, the deposition contained the following questions and answers which were read to the jury:

'Q. From 1933 to August, 1944, you have not cohabited with women other than your wife? A. I will put that same answer in there, I don't think this has anything to do with it, I think it is impertinent.

'Q. You do...