Reavely v. Harris

• Decision Date: 23 April 1909
• Citation: 88 N.E. 238,239 Ill. 526
• Parties: REAVELY v. HARRIS.
• Court: Illinois Supreme Court

239 Ill. 526

88 N.E. 238

REAVELY

v.HARRIS.

Supreme Court of Illinois.

April 23, 1909.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Sangamon County; James A. Creighton, Judge.

Action by Mary Reavely against Clara Harris. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.

Smith & Friedmeyer, for appellant.

S. H. Cummins and Stevens & Stevens, for appellee.

HAND, J.

This was an action on the case commenced by Mary Reavely, the appellee, against Clara Harris, the appellant, in the circuit court of Sangamon county, to recover damages for criminal conversation and for alienating the affections of her husband, John S. Reavely. The declaration contained two counts. A demurrer was overruled as to each count of the declaration, and the general issue was filed. A trial resulted in a verdict in favor of the plaintiff for the sum of $5,000, upon which the court, after overruling a motion for a new trial and in arrest of judgment, rendered judgment, which judgment, upon the appeal of the defendant, was affirmed by the Appellate Court for the Third District, and a further appeal has been prosecuted to this court.

It is first contended that the trial court erred in refusing to direct a verdict in favor of the defendant. The defendant made a motion, accompanied by an instruction, for a directed verdict at the close of the plaintiff's evidence, and, the motion having been overruled, the defendant then put in her evidence and the plaintiff rebutting evidence, but the defendant did not renew her motion, accompanied by an instruction, for a directed verdict at the close of all the evidence. The practice is well settled in this state that in order to preserve the question for review in this court, as a question of law, whether the evidence fairly tends to support the plaintiff's cause of action, a motion in writing for a directed verdict, accompanied by an instruction to find for the defendant, must be presented to the court by the defendant at the close of all the evidence, and it is not sufficient to make such motion and present such instruction at the close of the plaintiff's testimony, where, after the defendant's motion has been overruled, he proceeds to introduce proofs. Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. Hewitt, 202 Ill. 28, 66 N. E. 829;Chicago Union Traction Co. v. O'Donnell, 211 Ill. 349, 71 N. E. 1015;Streator Independent Telephone Co. v. Continental Telephone Construction Co., 217 Ill. 577, 75 N. E. 546.

It is next contended that the court erred in the admission and exclusion of evidence. The marriage between the plaintiff and John S. Reavely was proved by parol testimony, and the court admitted certain conversations between the plaintiff and defendant over the telephone and certain conversations between the plaintiff and her husband had out of the presence of the defendant. All this evidence was admitted without any objection to its admissibility being interposed,and no exception has been preserved to its admission. If the defendant desired to have this court pass upon the admissibility of this evidence, she should have objected to its admission and obtained a ruling as to its competency by the trial court, and, if that court overruled her objections, preserved proper exceptions to the ruling of the court. A party cannot permit incompetent evidence to go to the jury, without objection or preserving exceptions to the ruling of the court admitting such testimony, and, then have the case reversed on the ground that the evidence was incompetent. This would permit a party to speculate upon the result of the admission of incompetent evidence, and to obtain the benefit of incompetent evidence if the result of its admission resulted to his advantage, and to obtain a reversal of the case in the event its admission proved detrimental to him. Kennedy v. Borah, 226 Ill. 243, 80 N. E. 767.

On the trial one Rose Link made statements different from those it was claimed she had made out of court, and it was sought to corroborate her evidence by proof that on another occasion she had made statements which agreed with those testified to by her upon the trial. Evidence of this character is generally held to be incompetent (Chicago City Railway Co. v. Matthieson, 212 Ill. 292, 72 N. E. 443), as it usually amounts only to hearsay evidence. In this case the purpose of the evidence was not pointed out to the court, although the court inquired of counsel for the defendant the object of seeking to introduce the same. We think the court did not err in excluding the evidence.

The witness Rose Link was claimed to have made certain statements to the plaintiff, in the presence of plaintiff's attorney. On the trial she denied the statements, and intimated in her testimony that the plaintiff's attorney had in said interview sought to induce her to give false testimony. The attorney, although actively engaged in the trial, and...