Stutz v. Milligan

• Decision Date: 08 June 1920
• Docket Number: No. 16075.,16075.
• Parties: STUTZ v. MILLIGAN et al.
• Court: Missouri Court of Appeals

223 S.W. 128

STUTZ v. MILLIGAN et al.

No. 16075.

St. Louis Court of Appeals. Missouri.

June 8, 1920.

Appeal from St. Louis Circuit Court; Thos. C. Hennings, Judge.

"Not to be officially published."

Action for alienation of affections by Lulu Stutz against Lena Milligan and others. Verdict for plaintiff, a new trial was granted, and plaintiff appeals. Affirmed and remanded.

Conrad Paeben and Chester H. Krum, both of St. Louis, for appellant.

Curlee & Hay, Kenneth Teasdale, and Ralph T. Finley, all of St. Louis, for respondents.

NIPPER, C.

This is an action for damages, brought by Lulu Stutz, plaintiff, against defendants (who are respondents here), for alienating the affections of her husband.

The jury returned a verdict for plaintiff in the court below, for $1,500 actual damages and $500 punitive damages.

Respondents filed their motion for new trial, and one of the grounds alleged in said motion is as follows:

"Because the court erred in failing to discharge the jury upon the motion and application of defendant after and because of the conduct of plaintiff in crying aloud and becoming hysterical, or apparently so, in the presence of the jury, and thus greatly affecting and appealing to the sympathies and passion of the jury."

The court sustained respondent's motion for new trial on the ground above set out, and from this order appellant has appealed to this court, and insists that the only question before this court is whether or not the trial court abused its discretion in granting respondents a new trial upon that ground.

We here copy from appellant's abstract of record, as to what took place at the time complained of in the trial court:

"A man comes forward and stands by clerk's desk to be sworn.

"Mr. Hay: I will state, your honor, this is the husband of the plaintiff we have produced— "(At this point the plaintiff cries and sobs aloud: `O-h-h! O-h-h! My darling! O-h-h! O-h-h! O-h-h! Look—how he looks!' Plaintiff is removed from the courtroom.)

"Mr. Hay: You may retire, Mr. Stutz.

"Thereupon the following occurred out of the hearing of the jury:

"Mr. Hay: I think, in view of this, the jury ought to be discharged.

"Mr. Paeben: No; it is incompetent. This woman has not seen this man for some time, and the unexpected appearance of the man— "Mr. Hay: I don't think it would be possible for the jury to render a fair and impartial verdict in view of the incident. I am willing that the matter may go over, and we will try it again immediately.

"Mr. Paeben: I object to that.

"Mr. Hay: I think in all fairness—I think the record should show that Stutz, the husband of the plaintiff, appeared, called by the defense as a witness, and upon his doing so the wife of the plaintiff broke down, became overcome with emotion, and broke into sobbing and crying and moaning aloud in the presence of the jury, and had to be taken from the courtroom. I move that the jury be therefore discharged. "Mr. Paeben: We object to the jury being discharged because the defendants' counsel well knows in cases of this character that the husband of the plaintiff could not be a competent witness, and he might have avoided that scene by leaving the man away from the courtroom.

"The Court: Well, of course, the witness is not incompetent unless the other side objects to it. I have to hold that the witness is competent until the objection is made. Your motion to discharge the jury is overruled.

"No exception to this ruling was saved by respondents.

"Thereupon counsel for the respondents made the following statement:

"'The defendants tender as a witness Edgar Stutz, the husband of the plaintiff, who will, if permitted,_ testify as follows: I don't care to state this in the hearing of the jury.'"

"The Court: You may make your record on it; you have offered him."

"The counsel for appellant objected to any testimony on the part of the witness Edgar Stutz on the ground that he was incompetent, being the husband of the plaintiff. The court sustained the objection, and no exception was saved on the part of the respondents."

Appellant insists that the court sustained a ground in a motion for new trial, which was not one that could be considered, and that respondents saved no exception to the refusal of the trial court to discharge the jury, and, further, that respondents were responsible for...