Vollmer v. Stregge
| Decision Date | 09 May 1914 |
| Docket Number | 81912 |
| Citation | 147 N.W. 797,27 N.D. 579 |
| Court | North Dakota Supreme Court |
Appeal from District Court, McHenry County, A. G. Burr, J.
From a judgment in plaintiff's favor and from an order denying a new trial, defendant appeals.
Affirmed.
F. J Funke and E. R. Sinkler, for appellant.
In an action for damages for criminal conversation, the marriage between plaintiff and his wife must be proved by direct evidence, and not by mere circumstances, such as cohabitation or reputation. Dann v. Kingdom, 1 Thomp. & C. 492; Catherwood v. Caslon, 13 Mees. & W. 261, Car. & M 431, 13 L. J. Exch. N. S. 334, 8 Jur. 1076; Case v Case, 17 Cal. 598; People v. Anderson, 26 Cal. 129; Keppler v. Elser, 23 Ill.App. 643; Campbell v. Carr, 6 U. C. Q. B. O. S. 482; 3 Wigmore Ev. 2804, 2807; 21 Cyc. 1630 and cases cited; Perry v. Lovejoy, 49 Mich. 529, 14 N.W. 485; Abbott, Trial Ev. 631 and authorities cited; Snowman v. Mason, 99 Me. 490, 59 A. 1019; Stark v. Johnson, 43 Colo. 243, 16 L.R.A.(N.S.) 674, 127 Am. St. Rep. 114, 95 P. 930; 15 Ann. Cas. 868.
The court's instruction to the jury that they might take into consideration the testimony of defendant that a criminal charge was still pending against him, in determining the weight to be given to his evidence, was erroneous, and to the prejudice of the defendant. People v. Elster, 2 Cal. Unrep. 315, 3 P. 884; Marx v. Hilsendegen, 46 Mich. 336, 9 N.W. 439; People v. Wolcott, 51 Mich. 612, 17 N.W. 78; Kober v. Miller, 38 Hun, 184; Van Bokkelen v. Berdell, 130 N.Y. 141, 29 N.E. 254; Sullivan v. Newman, 63 Hun, 625, 43 N.Y. S. R. 893, 17 N.Y.S. 424; V. Loewers Gambrinus Brewery Co. v. Bachman, 45 N.Y. S. R. 48, 18 N.Y.S. 138; People v. Carolan, 71 Cal. 195, 12 P. 52; Smith v. State, 79 Ala. 21; Bates v. State, 60 Ark. 450, 30 S.W. 890; People v. Hamblin, 68 Cal. 101, 8 P. 687; People v. Crapo, 76 N.Y. 288, 32 Am. Rep. 302; People v. Noelke, 94 N.Y. 144, 46 Am. Rep. 128; People v. Irving, 95 N.Y. 541; State v. Kent (State v. Pancoast), 5 N.D. 557, 35 L.R.A. 518, 67 N.W. 1052; 2 Wigmore, Ev. p. 1110; People v. Silva, 121 Cal. 668, 54 P. 146; People v. Warren, 134 Cal. 202, 66 P. 212; State v. Nussenholtz, 76 Conn. 92, 55 A. 589; Germinder v. Machinery Mut. Ins. Asso. 120 Iowa 614, 94 N.W. 1108; Ashcraft v. Com. 22 Ky. L. Rep. 1542, 60 S.W. 931; Howard v. Com. 110 Ky. 356, 61 S.W. 756, 13 Am. Crim. Rep. 533; Johnson v. Com. 22 Ky. L. Rep. 1885, 61 S.W. 1005; Com. v. Welch, 111 Ky. 530, 63 S.W. 984; Ashcraft v. Com. 24 Ky. L. Rep. 488, 68 S.W. 847; Lange v. Wiegand, 125 Mich. 647, 85 N.W. 109; State v. Renswick, 85 Minn. 19, 88 N.W. 22; Lipe v. Eisenlerd, 32 N.Y. 238; McKesson v. Sherman, 51 Wis. 303, 8 N.W. 200; Greenl. Ev. 16th ed. 461b, 461c, pp. 579, 580; Slater v. United States, 1 Okla. Crim. Rep. 275, 98 P. 112; State v. Sanderson, 83 Vt. 351, 75 A. 961; Starling v. State, 89 Miss. 328, 42 So. 798; State v. Stewart, 6 Penn. (Del.) 435, 67 A. 786; Missouri K. & T. R. Co. v. Creason, 101 Tex. 335, 107 S.W. 527; Musgraves v. State, 3 Okla. Crim. Rep. 421, 106 P. 544; Nelson v. State, 3 Okla. Crim. Rep. 468, 106 P. 647; Dotterer v. State, 172 Ind. 357, 30 L.R.A.(N.S.) 846, 88 N.E. 689; Keys v. United States, 2 Okla. Crim. Rep. 647, 103 P. 874; Smith v. United States, 161 U.S. 85, 40 L.Ed. 626, 16 S.Ct. 483; People v. Elster, 2 Cal. Unrep. 315, 3 P. 884; Langhorne v. Com. 76 Va. 1012; State v. Ripley, 32 Wash. 182, 72 P. 1036; Watson v. State, 155 Ala. 9, 46 So. 232; Landy v. Moritz, 33 Ky. L. Rep. 223, 109 S.W. 897; State v. Nyhus, 19 N.D. 326, 27 L.R.A.(N.S.) 487, 124 N.W. 71; Roop v. State, 58 N.J.L. 479, 34 A. 749; Carr v. State, 43 Ark. 99, 5 Am. Crim. Rep. 438; Anderson v. State, 34 Ark. 257; Stanley v. AEtna Ins. Co. 70 Ark. 107, 66 S.W. 432; Re James, 124 Cal. 653, 57 P. 578, 1008; State v. Burton, 2 Marv. (Del.) 446, 43 A. 254; Bonaparte v. Thayer, 95 Md. 548, 52 A. 496; State v. Huff, 11 Nev. 17; State v. Fournier, 108 Minn. 402, 122 N.W. 329; Kolb v. Union R. Co. 23 R. I. 72, 54 L.R.A. 646, 91 Am. St. Rep. 614, 49 A. 392; State v. Thompson, 127 Iowa 440, 103 N.W. 377; Dungan v. State, 135 Wis. 151, 115 N.W. 350; People v. Derbert, 138 Cal. 467, 71 P. 564.
Where plaintiff's wife had sexual intercourse with defendant voluntarily, and thereafter plaintiff, with full knowledge of such facts, continued to live and cohabit with his wife, such fact should be submitted to the jury, under instructions by the court, as in mitigation of damages; and it was error to refuse same. Smith v. Hockenberry, 146 Mich. 7, 117 Am. St. Rep. 615, 109 N.W. 23, 10 Ann. Cas. 60.
The court should have given the requested instruction to the effect that no man can take advantage of his own wrong, and that if the jury found from the evidence that the plaintiff connived at the sexual intercourse between his wife and defendant, no recovery could be had. Rea v. Tucker, 51 Ill. 110, 99 Am. Dec. 539; Smith v. Meyers, 52 Neb. 70, 71 N.W. 1006; Lee v. Hammond, 114 Wis. 550, 90 N.W. 1073; Morning v. Long, 109 Iowa 288, 80 N.W. 390; Hoggins v. Coad, 58 Ill.App. 58.
Christianson & Weber, for respondent.
Assignments of error are waived by failure to present and discuss them in the brief. They will be held as abandoned. Rule 14, supreme court rules; Pendroy v. Great Northern R. Co. 17 N.D. 434, 117 N.W. 531; Nokken v. Avery Mfg. Co. 11 N.D. 404, 92 N.W. 487; Foster County Implement Co. v. Smith, 17 N.D. 178, 115 N.W. 663; Ulmer v. McDonnell, 11 N.D. 391, 92 N.W. 482; Kelly v. Pierce, 16 N.D. 235, 12 L.R.A.(N.S.) 180, 112 N.W. 995.
Errors should not only be clearly specified, but it should be shown in the brief why the rulings of which complaint is made are erroneous. 2 Cyc. 1016.
The marriage and its validity can only be put in issue by special plea. It is not raised by general denial. 5 Enc. Pl. & Pr. 619; 21 Cyc. 1630.
A presumption, unless declared by law to be conclusive, may be controverted by other evidence, direct or indirect; unless so controverted, the jury are bound to find according to the presumption. Rev. Codes 1905, §§ 7315, 7317.
The fact of the marriage may be proved by the testimony of the contracting parties. State v. Rood, 12 Vt. 396; Jacobsen v. Siddal, 12 Ore. 280, 53 Am. Rep. 360, 7 P. 108; Bailey v. State, 36 Neb. 808, 55 N.W. 241; Com. v. Dill, 156 Mass. 226, 30 N.E. 1016; Com. v. Hayden, 163 Mass. 453, 28 L.R.A. 318, 47 Am. St. Rep. 468, 40 N.E. 846, 9 Am. Crim. Rep. 408; State v. Nadal, 69 Iowa 478, 29 N.W. 453; Smith v. Fuller, 138 Iowa 91, 16 L.R.A.(N.S.) 91, 115 N.W. 912.
The court submitted a written charge. No exceptions or objections to any portion thereof were taken as by law provided. Counsel cannot afterwards urge objections. Rev. Codes 1905, § 7021.
All presumptions are in favor of the regularity of the trial and of all proceedings. State v. Wright, 20 N.D. 216, 126 N.W. 1023, Ann. Cas. 1912C, 795; 3 Cyc. 305; Vail v. Reynolds, 42 Hun, 647.
The court's instructions could not have prejudiced the defendant, as there was in reality no conflict as to the material facts. Cochran v. State, 113 Ga. 726, 39 S.E. 333; Chicago City R. Co. v. Olis, 192 Ill. 514, 61 N.E. 460.
Plaintiff's consent and connivance must be specially pleaded in defense to an action by him to recover damages for criminal conversation with his wife, before it can be claimed to bar the action. Morning v. Long, 109 Iowa 288, 80 N.W. 390.
All matters in mitigation of damages must be specially pleaded. Vierling v. Binder, 113 Iowa 337, 85 N.W. 622.
Where the verdict is not excessive, or even claimed to be so, errors in instructions on the measure of damages are harmless. Jones v. Monson, 137 Wis. 478, 129 Am. St. Rep. 1082, 119 N.W. 179; Security Sav. Bank v. Smith, 144 Iowa 203, 122 N.W. 825; Pico v. Stevens, 18 Cal. 376; Davis v. Reamer, 105 Ind. 318, 4 N.E. 857; Wells v. Houston, 29 Tex. Civ. App. 619, 69 S.W. 183; Cartier v. Douville, 98 Mich. 22, 56 N.W. 1045; Flanagan v. Baltimore & O. R. Co. 83 Iowa 639, 50 N.W. 60; Ball v. Gussenhoven, 29 Mont. 321, 74 P. 871; Chicago, W. & V. Coal Co. v. Moran, 210 Ill. 9, 71 N.E. 38; Durfee v. Newkirk, 83 Mich. 522, 47 N.W. 351.
Where defendant failed to appear on his own motion for a new trial, he will be deemed to have abandoned the same. Monroe v. Lippman Bros. 115 Ga. 164, 41 S.E. 717; Calumet Furniture Co. v. Reinhold, 51 Ill.App. 323; Boggs v. Clark, 37 Cal. 236; Moore v. Kendall, 121 Cal. 145, 53 P. 647; Dorcy v. Brodis, 153 Cal. 673, 96 P. 278.
The court was not compelled to search the record, and proceed to a hearing on the motion for a new trial, upon failure of the moving party to appear. 29 Cyc. 1008, 1013.
Defects in pleadings or proceedings, not affecting the substantial rights of the parties, shall be disregarded. Rev. Codes 1905, § 6886; State v. Albertson, 20 N.D. 513, 128 N.W. 1122; State v. Staber, 20 N.D. 545, 129 N.W. 104; State v. Winbauer, 21 N.D. 70, 128 N.W. 679, Ann. Cas. 1913B, 564.
This is an action to recover damages for criminal conversation. The complaint is in the usual form, alleging that one Marie Vollmor is, and at all times mentioned in the complaint was the wife of the plaintiff, and that in the month of April, 1911, and at divers and sundry times since the 26th day of April, 1911, while plaintiff was living and cohabiting with and supporting his said wife, the defendant, wrongfully contriving and intending to injure the plaintiff, and to deprive him of the comfort, society, aid, assistance, and affection of his wife, did stealthily visit plaintiff's home in plaintiff's absence, and wilfully and maliciously debauch and carnally know the said Marie Vollmer without the privity or consent of plaintiff. That by means of plaintiff's said unlawful acts the affection which the said ...
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