103 Or. 319 | Or. | 1922
There was ample evidence upon which the jury could find that every step taken by LuElsie from March 1st until her arrival at St. Helens on March 11th was taken freely and voluntarily. Moreover, there was ample opportunity for her to withdraw prior to the performance of the marriage ceremony, and there were many opportunities for her to complain and leave the plaintiff even after the ceremony had been performed. Eobert was not with LuElsie a part of the time Wednesday night. When they went to get Will and Foss, LuElsie remained in the car on the street in the business section, of Portland for at least ten minutes while Eobert was inside talking with Will and Foss. LuElsie remained in the automobile alone while Cole, Will and Foss went to the clerk’s office in the courthouse and obtained the marriage license. LuElsie remained in the automobile
On March 8th Alice Blackwell and Johnson called at the courthouse of Multnomah County for the purpose of inspecting the marriage records and obtain
Mrs. S. C. Morton, who lives in a house adjoining the McCormick residence, saw all that occurred when .Estes and Lester Williamson went to the McCormick residence. According to the testimony of Mrs. Morton, LuElsie had apparently dressed for dinner; she had changed her clothes; her hair was neatly combed and arranged; she was dressed in a shirtwaist and a skirt. According to the testimony of witnesses for the plaintiff, Johnson was not in his room at the Nortonia Hotel at any time Tuesday night, the 12th, nor was he there for a number of days following. His mail accumulated uncalled for. His automobile remained uncalled for in a garage. On March 13th, the day following the trip to St. Helens, Johnson deeded his property to J. J. Noonan, Jr.
About 8 o’clock a. m. on March 13th Lester Williamson telephoned to M. J. MacMahon, an attorney who had acted as Johnson’s attorney on prior occasions, and soon thereafter Lester and his brother Estes went to MacMahon’s office and took MacMahon out to the residence of Ray Williamson, where Mrs. Cole had been left the night before.
During the night of March 12th the sheriff of Columbia County together with an officer from Portland attempted to find the defendants. According to testimony of witnesses for the plaintiff, Alice Blackwell was not. at her home, nor could she be found at the place where she had been working.
On Saturday, March 16th, pursuant to an arrangement made with M. J. MacMahon, the attorney, Robert saw and talked with LuElsie at the Imperial Hotel. She refused to return with him or have anything to do with him. According to Robert, she told him at that time that her “folks” had put detectives on his trail and found out what kind of a man he was in San Francisco. The plaintiff contends that Alice Blackwell and the Williamsons were the only “folks” and with Johnson were the only people closely connected with the alleged enticement of LuElsie. There are many details in addition to those already related which, if true, tend to support the theory of the plaintiff. The defendants offered evidence which contradicted the testimony of the witnesses for the plaintiff. There was evidence to support the theory of the plaintiff. There was evidence to support-the theory of the defendants. The question was one for the jury to decide. The finding of the jury was in favor of the plaintiff and there was ample evidence to support the conclusion of the jury.
“Wait a minute;, your Honor kept us out from giving any testimony, any statement, she made or any statement.” The court remarked: “I did not rule that out. There was an attempt to have it ruled out, but I did not.”
And thereupon the attorney for defendants said “save an exception,” and then the witness gave his version of the conversation. It will be observed that the defendants themselves in the face of the objection of the plaintiff required LuElsie to give her version of the conversation, and the defendants having persuaded the court to rule with them were not in a position to claim that the plaintiff could not give his version of the conversation. As explained by the court there was an attempt to prevent LuElsie from repeating the conversation but the attempt failed. Moreover, the objection of the defendants was placed solely upon the mistaken ground that the court had refused to permit the defendants from offering any
“Well, as soon as we got to Portland, I went up to tbe courthouse and got one of tbe deputy sheriffs there to go with us. Prior to that time we bad located where Johnson stayed — I don’t remember tbe name of tbe hotel, but at any rate we went to bis room and be wasn’t there.”
Another question was then asked, and additional questions were asked and answers given without further
Defendants objected to some of the testimony of Mrs. H. F. McCormick concerning statements made by LuElsie when at the McCormick home. It is not necessary to discuss this testimony further than to say that it was clearly material and competent.
The cross-examination of Estes about his feelings towards Johnson was competent. Moreover, the answer given by him was entirely devoid of harm to the interests of the defendants.
“Well, I didn’t have any wrap on, so my youngest brother put his coat on me and I got in the machine and sat in the machine with my aunt Alice and I told them to drive just as fast and hard as they could; that he would get me as soon as he found I had left.
“Q. Why did you?
“A. Because he had two revolvers and would use them if I would leave.”
On motion of the plaintiff the court struck out both answers.
The second answer was obviously incompetent. In view of the issues raised by the pleadings and the theories advanced by the parties and in the attending circumstances the first answer was competent. The uncontradicted evidence is to the effect that the automobile was driven out of St. Helens at a high rate of speed; and, indeed, there is evidence to the effect that the car was driven so fast that a bearing was burned out before Portland was reached. The testimony was competent for the purpose of explaining the. fast driving. Of course, the question of credibility was for the jury alone. Furthermore, what was said and done by LuElsie when she got in the Smith car was a part of the story of her departure: Schneider v. Tapfer, 92 Or. 520 (180 Pac. 107); Pugsley v. Smyth, 98 Or. 448 (194 Pac. 686). However, it is probable that the ruling of the court did not injure the defendants. Alice Blackwell and Lester Williamson both testified fully about what was said by LuElsie when she
The court did not commit error in refusing to give the following instructions:
“You are further instructed that the plaintiff has wholly failed to produce evidence substantiating the charges in his complaint to the effect that these defendants, or any of them, have communicated false or defamatory statements or rumors against the plaintiff to LuElsie Cole, and in reaching your verdict you must not consider any such allegations contained in plaintiff’s complaint or his amended supplemental complaint.”
There was evidence, circumstantial it is true but nevertheless evidence, from which the jury could have inferred that the defendants did that which the plaintiff alleged they did.
The amended supplemental complaint supplanted the supplemental complaint, and hence we are not now concerned with any ruling made by the trial court on the motion against the supplemental complaint.
“If you should find from the evidence that the defendants, by their intentional acts or conduct, alienated the affections of' Mrs. Cole or by such means caused her to remain away from her husband, it is not necessary to prove that it was done for an adulterous or immoral purpose, to entitle the plaintiff to receive a verdict herein. ’ ’ ■
“ The court instructs the jury that a stranger may in good faith, acting from humanity and hospitality, receive the wife of another within his home without being guilty of harboring or enticing her away from her husband, and any person, whether relative of the wife or not, if he acts in good faith, is justified in aiding her to leave her husband’s home, or in harboring her, when she asks assistance on the ground of ill treatment by her husband. If you find from the evidence that LuElsie Cole asked assistance from the defendants, or any one or more of them, on the ground of ill treatment by her husband, and that in pursuance to' said request defendants, or any one or more of them aided, assisted, and befriended LuElsie Cole in escaping from the plaintiff and thereafter harbored her, acting in good faith, then they are not guilty of harboring her or enticing her, and you must find your verdict in favor of "the defendants.”
It was the theory of the defendants that LuElsie was compelled by the plaintiff to marry him, and that all she did from the night of March 6th until the time she left St. Helens on the 12th was done under duress, and that the acts of the defendants in assisting her to leave St. Helens was done in good faith upon her request for assistance in leaving because of the ill treatment of her husband. The defendants
The judgment is reversed and the cause is remanded for a new trial.
Reversed and Remanded.