149 Minn. 251 | Minn. | 1921
This is an action for damages for the alienation by defendant of the affections of plaintiff’s wife. It made its first appearance here in 1917 on an appeal from %n order striking out a portion of the answer. Mullen v. Devenney, 136 Minn. 343, 162 N. W. 448. Plaintiff’s wife had theretofore obtained a divorce from him and that ease has also been here. Mullen v. Mullen, 135 Minn. 179, 160 N. W. 494. There were three trials of the present action in the court below. The first resulted in a verdict for plaintiff for $40,000, which was set aside as excessive. At the second, the jury disagreed, and at the third and last, plaintiff secured a verdict for $23,500. Defendant. appeals from a denial of a new trial.
The record is bulky and the briefs extended, but the questions presented for decision are few and comparatively simple. They center around alleged error in two respects: The refusal to give defendant’s requested instructions, and misconduct of plaintiff’s counsel not prop'erly corrected by the court.
“The plaintiff’s charge against the defendant, so far as I shall submit it to you, is as follows: That * * * the defendant * * * did wickedly and maliciously plan and contrive to-, and enter upon the undertalring of obtaining 'for himself the love and affectjon of the said Anna Mullen, thus alienating and destroying her affections for the plaintiff, and teaching her to dislike and become dissatisfied with him and with her surroundings in said home, and to induce her to yield herself to his sexual embrace, and to thus break up and destroy the home of the plaintiff, and deprive him of the comfort of his said home and the love, affection and society of his said wife. That is the charge which the plaintiff makes as to the intention of the defendant for the acts which he subsequently charges the defendant did, as much as what the defendant actually did.
“The plaintiff further charges that in furtherance of such purpose and undertaking, the defendant did * * * approach and attend upon the said Anna Mullen with all the ordinary -attentions, acts, wiles, and blandishments of a lover, and to ply her -with compliments and flattery, and that he has thereby secured for himself the love and affection of said Anna Mullen, and has deprived the plaintiff of such love and affection. * * *
“This charge is all denied by the defendant, and in addition to denying the charge, the defendant alleges that if the plaintiff has lost the love and -affection of his former wife, Anna Mullen, it i-s because of his drunkenness, and of his -cruel and inhuman treatment of her and not because of anything this defendant may have done. * * *
“Now, those claims of the plaintiff on the one hand and of the defendant on the other hand, constitute the disputed questions of fact, gentlemen, which it is your province to determine.”
There was a further instruction that before plaintiff could recover he
In the Bowers case three separate claims of negligence were pleaded, to which the court referred in charging the jury. There was no evidence to sustain two of them. Mr. Justice Iiolt said: “Stating all the claims without regard to the proof, and stating one issue involving acts not directly charged as negligence in the complaint, tended to confuse and becloud the single issue made by the evidence. * * * In view of the fact that the court had stated to the jury all the claims of negligence made in the complaint, we think defendant was entitled to the •specific instructions requested withdrawing from consideration those as to Which there was no proof whatever.”
In the case at bar, but one ground for recovery is pleaded, namely, the alienation of the-wife’s affection. All other allegations of the complaint are of evidential as distinguished from the ultimate facts which are the foundation of .plaintiff’s right of action. In the Bowers case, negligence in one or more of the respects alleged was the ultimate fact to be established. The court did not limit the jmy to a consideration of the one ultimate fact alleged which there was evidence to establish. But here the jury was definitely limited to consideration of conduct of defendant of which there was evidence. In this connection Korby v. Chesser, 98 Minn. 509, 108 N. W. 520, is in point.
Jurors are presumed to know the difference between accusations and proof. We doubt that a lasting impression is made on their minds by hearing pleadings read. They are more interested in what they hear from the witnesses and the court. At the close of a prolonged trial like this, filled with incidents of lively interest to the spectators, their recollection of what was read to them at the outset was apt to be dim. To have taken up each unfounded charge in the complaint and to have
We dispose of the remaining assignments of error with these rules in mind.
In his argument to the jury, one of -defendant’s counsel said: “We want to stay within the record. Why does Mr. Murphy say There isn’t a -court in the land but what would grant you a divorce?’” In the closing argument, opposing counsel replied: “But she didn’t have any ground for divorce. There wasn’t any showing of it. If there was any complaint at all, it was the complaint that her husband stayed home too much.”
Defendant requested an instruction that there was no evidence that the divorce was secured by means of false or perjured testimony. The instruction was not given, but the court did tell the jury they were in no way concerned with the rightfulness or wrongfulness of the decree of divorce. It is contended that, in view of the. statements made in the argument, the requested instruction should have been given and that the ground was not properly covered by what -the jury were told. We do not sustain the contention.
The remark of defendant’s counsel first introduced the subject, which was wholly collateral to the issue on trial. The court correctly charged the jury they had nothing to do with the divorce proceedings. Moreover, if the remark was improper, it does not appear that any objection was made to it.
One of defendant’s witnesses was asked, on cross-examination, whether plaintiff’s counsel had not said to her that she knew more than she had told when a witness -at the previous trial and that she need not be afraid to tell all she knew. The question was objected to as suggestive.
When plaintiff’s wife was on the witness stand she was asked about a trip she had made to the Pacific coast accompanied by a young woman. She was asked where her companion obtained the money for the trip, and answered that it was furnished by a friend of the young woman’s mother. Asked who the friend was, she gave the name of one of plaintiff’s counsel. 'The gentleman whose name was given turned to defendant’s counsel and said:. “Tom, shake hands! I have got to hand it to you. This is one of the best things I have ever seen put over in a court of justice.” This led to a retort, and finally plaintiff’s counsel said: “This statement of counsel is an absolute falsehood and a lie.” At this point the record abounds in objections, exceptions and requests for action by the court. The court said: “This must stop. Now, gentlemen, this has gone far enough. * * * We will drop it and go on.”- Then, referring to what had been said by plaintiff’s counsel: “It was an improper statement to be made, and is excused only by the unusual circumstances preceding, and I think improper statements were made on both sides by each counsel. I will instinct the jury * * * to forget entirely, so far as this case is concerned, the little incident which has occurred here this afternoon.” We are of the ■opinion that the incident was properly dealt with and that there is no occasion for complaint of the treatment either side received at the court’s hands. A little later, plaintiff’s wife reiterated the statement that had aroused the ire of plaintiff’s counsel, who, addressing the court, said: “I object to this hysterical talk because it is all untrue.” In his argument to the jury, referring to this incident, he said: “If
The remaining charges of misconduct, as well as some of those already discussed, must be considered in the light of the 'following addition to the proposed case, made at the direction of the trial judge. In substance it is this: That in the argument to the jury defendant’s counsel violently denounced plaintiff and his witnesses as perjurers, referred to his counsel contemptuously, and naturally provoked retaliatory remarks; that many of the excerpts from the argument of plaintiff’s counsel refer and were in answer to improper argument of defendant’s counsel; that the interruptions of defendant’s counsel apparently were intended to prevent an orderly argument; that the court put a stop’to them and informed defendant’s counsel that they might have the entire argument taken by the court reporter and take exceptions to improper statements after -the argument closed; that counsel did not have the entire argument taken, but sat -by the reporter and directed him to take parts and not to take other parts of it, and that only a partial record was made, which is so disconnected as not to present the argument fairly; that no part of the argument, taken in its setting and context, seemed to the court to go beyond what was permissible, measured by the record and the argument of defendant’s counsel it was intended to answer.
In view of this statement, defendant has no solid ground upon which to found his remaining charges of prejudicial misconduct. Nevertheless we have considered each of them. It would serve no useful purpose to set out or express approval or disapproval of the fragmentary remarks of counsel appearing in the record. We do not know the connection in which the remarks were made. They may have been pertinent as a reply to something said by defendant’s counsel. The trial court’s statement indicates that they were. We cannot assume that there was neither occasion nor justification for them. We cannot view the whole situation from the vantage ground of the trial court. We, therefore, decline to override its conclusions.
Finding no error in the record of which defendant may justly complain, the order denying a new trial is affirmed.