Shrock v. Goodell

• Decision Date: 21 November 1974
• Citation: 528 P.2d 1048,270 Or. 504
• Parties: Loren E. SHROCK, Respondent, v. Jeffrey GOODELL, Appellant.
• Court: Oregon Supreme Court

Page 1048

528 P.2d 1048

270 Or. 504

Loren E. SHROCK, Respondent, v. Jeffrey GOODELL, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 5, 1974.

Decided Nov. 21, 1974.

Gerald R. Pullen, Portland, argued the cause and filed a brief for appellant.

Thomas O. Carter, Portland, argued the cause and filed a brief for respondent.

Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, HOWELL, BRYSON and SLOPER, JJ.

SLOPER, Justice (Pro Tempore).

This is an appeal by defendant, Jeffrey Goodell, from a judgment in favor of plaintiff, Loren E. Shrock, in the amount of $10,000, general damages, and no punitive damages, in an action at law for the alienation of the affection of plaintiff's former wife. Defendant's motions for involuntary nonsuit, directed verdict, a judgment notwithstanding the verdict or in the alternative for a new trial, and a supplemental motion for a new trial were denied by the trial court. Defendant presents 16 assignments of error.

A capsulization of over 250 pages of evidence herein would add nothing to the body of law set forth in the Oregon Reports. It is sufficient to say that we have read the transcript and from that examination we are prepared to determine defendant's assignments of error.

Assignment 1: Did the trial court err in denying defendant's motion for a mistrial based upon plaintiff's display of emotion while testifying? Plaintiff while testifying on direct examination about learning of his wife's intention to leave the family home broke into tears. This occurred just prior to the noon recess on the first day of trial at which time defendant moved for a mistrial. There was no further display of emotion on the part of plaintiff. Defendant in his brief concedes that the granting or refusal to grant a mistrial under such conditions is within the sound discretion of the trial court, and cites DeSpain v. Bohlke, 259 Or. 320, 324, 486 P.2d 545 (1971). The court in that case denied a motion for mistrial following plaintiff's crying while testifying as a witness and quoted with approval from the case of Hays v. Herman, 213 Or. 140, 145, 322 P.2d 119, 121, 69 ALR2d 947 (1958):

'* * * (D)amage cases frequently involve matters of high emotional content to the parties * * *, we obviously cannot say that any display of emotion whatever is improper. To do hold might mean that the case could never be tried. But it is equally obvious that an undue emotional outburst may under some circumstances amount to misconduct and may prevent a fair and impartial consideration by the jury. The line between the two cannot be drawn as a matter of law, but it must rest largely in the discretion of the trial court. * * *.'

Defendant asserts that there should be a different rule for what he characterizes as 'crocodile tears.' The veteran trial judge had the opportunity to observe the spontaneity of the emotional display and to judge its effect, if any, upon the jury. There is nothing in the record of this case to indicate an abuse of discretion in the trial court's denial of the motion for a mistrial.

Assignments 2 and 3: These assignments of error are for the trial court's overruling defendant's objection to questions and answers of plaintiff as to his relationship with his wife's parents and to plaintiff's testimony as to how he felt about the effect of the breakup of the marriage on plaintiff's child. The very limited testimony about plaintiff's relationship with his wife's parents could be simply considered background information as showing part of the relationship which existed between plaintiff and his wife before the separation and as such would be competent. We have previously held in Coates v. Slusher, 109 Or. 612, 626--627, 222 P. 311 (1924), that evidence by plaintiff as to how he felt about the effect on his child was competent and proper. We find no merit in plaintiff's assignments of error 2 and 3.

Plaintiff's assignments 4 through 8 will be considered together as they allege errors of the trial court, either in restricting defendant's cross-examination or direct examination of various witnesses. Assignment of error 4 was that the court erred in sustaining an objection to a question on cross-examination of the plaintiff as to whether he had any evidence of malicious enticement. Assignment 8 was that the court erred in sustaining an objection to a question posed to a defense witness on direct examination regarding his opinion as to whether plaintiff's wife was capable of enticing a man. We feel that the court's ruling in sustaining these objections was proper.

This court has early held that it is improper to ask the opinion of a witness on the ultimate issue in the case as that is within the exclusive province of the jury. Chan Sing v. Portland, 37 Or. 68, 73, 60 P. 718 (1900). More recent decisions have relaxed this rule to allow an expert to give his opinion even though it relaxes to the ultimate factual issue in the case. However, even in the case of an expert the opinion is only admissible if the area of testimony is so technical that the jury is incapable of deciding the issue and even then subject to the discretion of the trial judge. Thus, the expert may express an opinion of an ultimate fact if the ultimate fact cannot be equally well decided by the jury from the same evidence upon which the expert has based his opinion. Ritter v. Beals, 225 Or. 504, 525, 358 P.2d 1080 (1961). Opinion testimony of nonexpert witnesses has been approved in certain situations where the witness appeared to possess an understanding of the situation superior to that of the jury such as established intimacy with a person which permits the witness to express an opinion on sanity or general physical condition of a person. State v. Garver, 190 Or. 291, 315--316, 255 P.2d 771, 27 ALR2d 105 (1950). The questions asked of these two witnesses clearly do not satisfy the requirements for admission of nonexpert opinion testimony and it is obvious that the trial judge's exclusion of this evidence was not an abuse of discretion.

Assignments of error 5 and 7 deal with the trial court's sustaining of objections to questions on cross-examination of two witnesses, which questions were intended to reveal bias, hostility or interest on the part of the witness. The question in assignment 5 was to plaintiff's brother and asked if he was not having quite a problem with his prior marriage, and the question in assignment 7 was to plaintiff's employer and asked if it was unusual that a couple in this day and age decides that they no longer can live together. Defendant argues that the answer to both of these questions would have shown bias on the part of the witness. The scope of inquiry into bias on cross-examination is appropriately within the discretion of the trial judge. McCarty v. Hedges, 212 Or. 497, 516, 309 P.2d 186, 321 P.2d 285 (1958). Matters may be relevant to the bias of the witness which are not otherwise relevant to the case and may be admitted for the mere tendency to prove bias or interest. O'Harra v. Pundt, 210 Or. 533, 543, 310 P.2d 1110 (1957). However, relevancy being a question of degree, the trial judge may and should draw the line to exclude that which is of little or no probative value. In the McCarty and O'Harra cases the witnesses were involved in other legal actions which would be directly influenced by the outcome of the action in which they were testifying. It is parently obvious that that sort of direct influence is absent in the present case. A witness's philosophy on marriage and divorce or a witness's personal experience with his own marriage has insufficient probative value to establish bias. The trial judge was correct in sustaining the objection to the two questions.

Defendant assigns as his sixth error the failure of the trial court to allow the former wife to testify on cross-examination as to the advice given plaintiff and her by a marriage counselor. 'As has been many times ruled, the extent of cross-examination rests largely in the discretion of the trial judge.' Garrett v. Eugene Medical Center, 190 Or. 117, 132, 224 P.2d 563, 569 (1950). The guiding legal principle is that evidence on cross-examination should be limited to the subject matters referred to on direct. In this case the witness was asked on direct examination whether she and her husband had consulted a marriage counselor. Plaintiff specifically avoided any inquiry into what the counselor had said and, in fact, objected to Mrs. Shrock's unresponsive attempt to relate the advice given. Evidence of the counselor's advise had been allowed earlier in the trial over plaintiff's objection. Since there was similar testimony received, and while it would have been within the trial court's discretion to permit the witness to answer the question, the refusal cannot be considered to be so prejudicial as to be reversible.

Defendant in his ninth assignment of error contends that witness Eunice Shrock should not have been classified as an adverse witness and that plaintiff should not have been permitted to ask her leading questions, absent a...