Rash v. Waterhouse

• Decision Date: 02 February 1965
• Docket Number: No. 982,982
• Citation: 124 Vt. 476,207 A.2d 130
• Parties: Charles L. RASH v. Hayden L. WATERHOUSE.
• Court: Vermont Supreme Court

Page 130

207 A.2d 130

124 Vt. 476

Charles L. RASH v. Hayden L. WATERHOUSE.

No. 982.

Supreme Court of Vermont.

Feb. 2, 1965.

Maxwell L. Baton, Newport, for plaintiff.

Lawrence Miller, Newport, with C. O. Granai and M. Martin Leinwohl, Barre, on the brief, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

BARNEY, Justice.

In an action for alienation of his wife's affections, the plaintiff recovered judgment against the defendant. The defendant claims a reversal is required because the failure to strike out certain evidence, the insufficiency of the evidence to support a verdict for the plaintiff and the failure of the trial court to set aside the verdict infected the award with prejudicial error.

The questioned testimony came during the plaintiff's main case. He testified to the effect that he observed that his wife, at a time relevant to this litigation and during a period of non-access by him, gained, then suddenly lost, certain physical characteristics comparable to those that had occurred when she had been pregnant with their three children. All of this was testified to without objection.

A question was then propounded concerning the relationship of the time those characteristics were lost and a vacation period the wife was alleged to have taken. This inquiry was objected to as to form because of the use of the word 'pregnant.' The objection was ultimately overruled, in part, at least, because this same phraseology had already been used in previous examination without objection. An objection to the content was unavailable, even if made, since the same subject-matter had already been testified to without objection. Jaqueth v. Guilford School District 123 Vt. 382, 386-387, 189 A.2d 558.

Other than the single objection as to form, the defendant raised no question as to any of this testimony relating to the physical appearance of Mrs. Rash at this time. At the close of the plaintiff's case, however, the defendant moved to have all this testimony stricken. Upon the denial of that motion he moved for a mistrial, which was also refused. At the close of all the evidence he renewed his motion to strike this testimony.

In this Court the defendant contends he was fatally prejudiced because this evidence remained in the case without supporting expert testimony as to the fact of pregnancy. Defendant's standing to argue this issue is compromised by the object to the record, because, by failing to object to the testimony, the defendant waived his right, if any, to have this evidence stricken. State v. Watson, 99 Vt. 473, 477, 134 A. 585.

His argument here is addressed to a claimed failure to make this evidence competent by the introduction of further supporting evidence. As was pointed out in Towle v. St. Albans Publishing Co., 122 Vt. 134, 141, 165 A.2d 363, the right to have evidence stricken for failure to produce supporting evidence is premised on a timely objection having been originally interposed. The motion to strike was correctly denied.

The motion for a mistrial was addressed to the court's discretion and the denial of the motion will be held erroneous only if prejudice is affirmatively made to appear. Lewis v. Gagne, 123 Vt. 217, 220, 185 A.2d 468.

As we have seen, the evidence now claimed to be prejudicial and a proper basis for a mistrial, came in without challenge from the defendant. He must, therefore, assume the responsibility for whatever prejudice to his case derived from this evidence. He made it available for the consideration of the jury. State v. Hedding, 122 Vt. 379, 383, 172 A.2d 599. He cannot, therefore, be heard to say that it was error for the court to refuse to base a mistrial ruling on this evidence.

These are not mere technical rulings. Sound policy considerations underlie them. If questions as to the prjeudicial effect of unchallenged testimony need not be raised until the close of evidence, litigation could be rendered uncertain, inconclusive and punitively protracted. A party who allowed inadmissible evidence to come in without objection could gain an unconscionable advantage. He would, in effect, have a builtin 'veto' over the litigation if it took a course unfavorable to him, for he could then bring forth his unmentioned assignments of error and require a retrial.

This would be a flagrantly unjust situation, since it would derive from his own failure to forthrightly point out error prejudicial to him at a time when prevention or correction of its adverse effect was still possible. For this reason, even though other bases for supporting the rulings of the trial court in connection with this evidence may exist, we confirm its denial of the motion to strike and the motion for a mistrial on this ground.

The complaint in this case is in two counts, one alleging alienation by enticement and the other alleging criminal conversation. The defendant insists that the verdict and judgment cannot stand because there is no evidence to establish that the defendant caused the alienation under count one, or to prove criminal conversation under count two.

The weight of the evidence is not for this Court. The question must be treated as a review of the lower court's denial of defendant's motion to set aside the verdict. This motion was grounded on two contentions: that the verdict was unsupported by the evidence, and that it was against the evidence. The first contention raises an issue of law; the second is reviewed as a discretionary ruling of the trial court. Dashnow v. Myers, 121 Vt. 273, 278-279, 155 A.2d 859.

A claim that a verdict is unsupported by the evidence is tested like a ruling on a defendant's motion for a directed verdict. The evidence is examined in the light most favorable to the plaintiff, in unmodified form, to determine if the ingredients essential to support a verdict for the plaintiff have been evidenced. Knight v. Willey, 120 Vt. 256, 259, 138 A.2d 596.

The testimony disclosed that in 1955, about a year after Mrs. Rash started working as a waitress in the Park Restaurant the defendant came to Barton. He became acquainted with Mrs. Rash at that time. He knew she was married and had children, and also knew who her husband was. The defendant frequented the restaurant almost daily. By 1959 ...