Spangenberg v. Christian, 22634.

• Decision Date: 10 February 1922
• Docket Number: No. 22634.,22634.
• Citation: 186 N.W. 700,151 Minn. 356
• Court: Minnesota Supreme Court
• Parties: SPANGENBERG v. CHRISTIAN.

151 Minn. 356

186 N.W. 700

SPANGENBERG

v.CHRISTIAN.

No. 22634.

Supreme Court of Minnesota.

Feb. 10, 1922.

Appeal from District Court, Hennepin County; W. C. Leary, Judge.

Action by Theodore G. Spangenberg against Harry Christian. On defendant's motion for judgment notwithstanding the verdict or for a new trial, an order was made denying judgment but granting a new trial unless plaintiff consented to a reduction of the verdict to $7,500. Plaintiff consented, and the defendant appeals. Order affirmed.

Syllabus by the Court

One who has not moved for a directed verdict before the case was submitted to the jury is not in a position to claim error on appeal because the court below refused to order judgment notwithstanding the verdict.

In this action for the alienation of the affections of plaintiff's wife, evidence was permissible of declaration made by the wife indicating to the witness that her affections for plaintiff had vanished before she knew defendant, but the court correctly ruled that her recital of plaintiff's treatment of her was inadmissible.

Other rulings on exclusion of evidence were proper.

The evidence is ample to show that defendant willfully caused the loss to plaintiff of his wife's affections.

There was no error in submitting the question of punitive damages to the jury, nor in charging that compensation for injury to the feelings could be made.

No instruction was requested on the subject of mitigation of damages, and there can be no error assigned upon the failure to instruct thereon.

There was no abuse of discretion in denying a new trial on the ground of newly discovered evidence. Donald L. Pomeroy, of Minneapolis (Jamison, Stinchfield & Mackall, of Minneapolis, of counsel), for appellant.

L. W. Crawhall, of Minneapolis, for respondent.

HOLT, J.

For the alienation of his wife's affections the jury awarded plaintiff damages in the sum of $10,000. On defendant's motion for judgment notwithstanding the verdict or a new trial, an order was made denying judgment but granting a new trial unless plaintiff consented to a reduction of the verdict to $7,500. Plaintiff consented. Defendant appeals.

That part of defendant's motion which was for judgment non obstante could not be considered in the court below, and cannot here, for there was no motion for a directed verdict at the close of the evidence. The appeal is therefore limited to the question whether the court erred in denying a new trial.

[3] Rulings upon the admissibility of testimony are assigned as erroneous. It is plain that the exclusion of an answer to a question inquiring as to the reason why the witness went out with his brother does not call for a reversal. There was no offer to show what facts the answer was expected to bring out, and the question itself did not suggest that any material or relevant evidence was called for. The court ruled that witnesses might testify to what they had heard plaintiff's wife tell as to how she fell towards her husband, but not to what she had told as to his treatment of her. This evidence related to a time long prior to plaintiff's and his wife's acquaintance with defendant. In Luick v. Arends, 21 N. D. 614, 132 N. W. 353, the court states:

‘Her declarations may be admitted to the effect that she does not love her husband, but her declarations of facts or reasons to justify or explain her lack of love are inadmissible and hearsay, the same as a statement to a third party without the presence of the husband that the husband did or said a certain thing.'

The purpose of defendant in offering the testimony was, no doubt, to show that plaintiff had lost his wife's affections prior to her acquaintance with defendant, and for such purpose declarations as to her feelings were admissible, under the rule stated, but her recital to a witness of plaintiff's treatment of her would be pure hearsay. Ample opportunity was...