Wrangham v. Tebelius

• Decision Date: 23 June 1975
• Docket Number: No. 9082,9082
• Citation: 231 N.W.2d 753
• Parties: Gayle WRANGHAM et al., Plaintiffs and Appellants, v. Ervin TEBELIUS, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 753

231 N.W.2d 753

Gayle WRANGHAM et al., Plaintiffs and Appellants, v. Ervin TEBELIUS, Defendant and Appellee.

Civ. No. 9082.

Supreme Court of North Dakota.

June 23, 1975.

Syllabus by the Court

1. When it appears to the trial court that the verdict is against the weight of the evidence, it is the duty of that court to set aside the verdict and to grant a new trial.

2. The granting of a motion for a new trial upon the ground of the insufficiency of the evidence will not be disturbed on appeal unless a manifest abuse of discretion appears.

3. In an appeal from an order granting a new trial on the ground of insufficiency of the evidence to support the verdict, the appellant has the burden of showing that the trial court erred and that the granting of the new trial was a manifest abuse of the trial court's discretion.

4. A stronger showing is required to reverse an order granting a new trial than to reverse an order denying one.

5. The test of what is within the discretion of a court has been suggested by the question: Could the court have properly decided the question either way? If so, there is no abuse of discretion in deciding it one way as opposed to the other.

6. In considering the motion for a new trial on the ground that the trial court erred in failing to give the requested instruction on the use of force, the trial court could have found that the force used by the movant toward the defendant was unrelated to any protection of self, wife, children, or property. It could have concluded that the force used, because of the circumstances, was punitive only and not preventative. Accordingly, the record does not support a finding on appeal that the trial court erred in refusing to give the requested instruction on force and in subsequently denying the plaintiff's motion for a new trial on that ground.

7. The defendant's requested instruction concerning the awarding of nominal damages would have required the jury to award such damages if it found that the defendant carnally knew the plaintiff's wife, irrespective of any other fact. Since Section 32--03--38, N.D.C.C., allows such damages but does not require that such damages be awarded, it was not error for the trial court to deny the requested instruction on nominal damages and to deny the plaintiff's motion for new trial on that ground.

8. For the reasons stated in the opinion, the order of the trial court denying the plaintiff's motion for a new trial and granting the defendant's motion for a new trial is affirmed.

Vance K. Hill, Bismarck, for plaintiffs and appellants.

Ella Van Berkom, Minot, for defendant and appellee.

ERICKSTAD, Chief Justice.

This appeal is brought by the plaintiffs, Gayle Wrangham; Darla Wrangham, a minor; and Joan Wrangham, a minor; by and through Gayle Wrangham, their next friend, from an order of the Wells County District Court granting the motion of the defendant, Ervin Tebelius, for a new trial and denying the plaintiff's motion for a new trial.

The plaintiffs brought an alienation of affections action seeking compensatory and exemplary damages for injuries allegedly caused them by Tebelius's wrongful conduct.

Winnifred Wrangham, the former wife of Gayle and the mother of Darla and Joan, was employed by Ervin Tebelius as his secretary in conjunction with his livestock sales business. Testimony was elicited during the trial that since 1968 Winnifred had accompanied Tebelius socially on many occasions; that they often danced and drank together and often called one another; that they once attended a wedding dance together in another town; that they spent varying periods of time together in parked automobiles and otherwise spent time together in a number of places and at all times of the day; and that they continued to do so until a short time prior to the trial out of which this appeal arose.

Other testimony indicates that Gayle Wrangham has since the time of his marriage indulged in associations of an unseemly nature with a number of women; that he has openly cohabited with a woman not his wife; that he recently visited this same woman in the State of Montana and that his relationship with her has continued for many years; that shortly after his marriage and while his wife was pregnant with their first child, a woman appeared at their home, introduced herself to Winnifred as her husband's mistress, and requested that Winnifred divorce him; that he has beaten Winnifred on many occasions and has also beaten Tebelius; that he has often abused Winnifred verbally and has done so in profane and vulgar language in the presence of their minor children; and that in June 1973 he was asked by Winnifred to leave home 'because he literally beat up the whole family.'

It further appears that while Gayle and Winnifred Wrangham have periodically lived together notwithstanding their problems, they are now living apart from one another and that the children now reside with Winnifred.

The complaint alleges that the defendant did abduct, entice, and seduce Winnifred Wrangham and alienate her affections from Gayle Wrangham and deprive him and the children of the comfort, society, and assistance of the wife and mother; such conduct of the defendant made the Wrangham home a miserable and desolate place to live; and this conduct caused the father and husband to leave home thereby depriving the children of the comfort, society, and assistance of their father as well as denying them the right and privilege to be raised by two affectionate parents.

Tebelius answered generally denying the allegations of the complaint and counterclaimed for damages for a beating inflicted upon him by Gayle Wrangham.

The jury dismissed Tebelius's counterclaim, found for Gayle Wrangham but awarded him no damages, and returned a verdict of $5,000 compensatory damages and $5,000 punitive damages for each of the minor daughters.

Gayle's motion for a new trial, denied by the trial judge, was based on the trial court's failure to give certain requested instructions. The first request was that the court give the following instructions:

'1.

'* * * If the defendant carnally knew plaintiff's wife, without the husband's consent, the husband is entitled to recover at least nominal damages from the defendant regardless of any other facts.

'7.

'Any necessary force may be used to protect your wife or child from wrongful injury.'

When the trial court refused to give these instructions, Gayle requested that Section 14--02--07, N.D.C.C., be given in its entirety. This request the court also refused. That section reads '14--02--07. Force to protect.--Any necessary force may be used to protect from wrongful injury the person or property of one's self, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest.' N.D.C.C.

Tebelius's motion for a new trial was based in part on the contention that the evidence was insufficient to justify the verdict as rendered by the jury.

The pertinent part of the trial court's memorandum opinion reads:

'I am going to grant the defendant's motion for new trial and deny the plaintiffs' motion for new trial as appears in his Paragraph 3. I don't think the verdict is supported by the evidence. I think it is clearly a result of passion and prejudice. I find no evidence of damage to the children, the only testimony being as I have recited: that they heard an argument within the family home wherein this was admitted but, as I have said, that argument was precipitated directly by Wrangham and could have been avoided, and he brought that on himself, and the only evidence I have of damage at all. The rest is conjecture. ...