77 Ind. App. 436 | Ind. Ct. App. | 1922
This action was by appellant against appellees to recover damages for the alleged alienation of the affections of appellant’s husband.
The errors assigned are: (1) The court’s action in overruling appellant’s demurrer to the second paragraph of answer; (2) the court’s action in overruling the motion for a new trial.
Appellant in her propositions treats such second paragraph of answer as a plea in confession and avoidance, and cites authorities to that effect, but in her memoranda to her demurrer she does not so treat it. She there says that such second paragraph is no more than a denial of the complaint, if that. In this statement we think she has well spoken. The bad faith of appellees is averred in the complaint, wherein it is alleged that appellees unlawfully, wrongfully and maliciously inspired appellant’s husband' with hatred and ill will
There is no evidence that is admissible under such second paragraph of answer that would not be admissible under the general denial which is pleaded. Error, if any, in overruling the demurrer was therefore harmless. Waters v. Delagrange (1915), 183 Ind. 497, 109 N. E. 758; Leonard v. City of Terre Haute (1911), 48 Ind. App. 104, 93 N. E. 872; State, ex rel. v. Daly (1911), 175 Ind. 108, 93 N. E. 539.
Appellant has assigned as a reason for a new trial that the evidence was. insufficient to sustain the verdict, but after rejecting all of the evidence offered by appellee which appellant has denied in rebuttal, there is still ample evidence uncontradicted to warrant the jury in finding against the appellant on the allegations in her complaint.
The judgment is affirmed.