92 Neb. 851 | Neb. | 1913
Tlie plaintiff began this action against the defendant in the district court for Douglas county, and recovered a verdict and judgment from which the defendant has appealed.
In his petition, as amended, the plaintiff alleges that he is 27 years old, and was born in the city of Omaha, and on the 23d day of June, 190(5, he was married to Josephine M. Rhoda, who is mnv about 23 years old; that plaintiff and his, wife had one child, a boy, avIio died in April, 1909, at about the age of 18 months; that the plaintiff and his wife lived happily together until about December 1, 1908, and that from about the 15th of November, 1908, until April 1, 1909, the plaintiff and his wife kept house at 2304 Dewey avenue, in the city of Omaha; and that about January 1, 1909, the defendant, having separated from his own wife, rented, furnished and moved into the house at No. 2321 Dewey avenue, and in close proximity to the
Upon the trial the plaintiff, as witness in his own behalf, testified that he and his brother' on the 12th day of April, 1909, watched the residence of the defendant from about 4:30 o’clock in the afternoon until a little after 8 o’clock in the evening, and that he was at that time about 20 feet from the back door of Bergers’ home, and saw his wife come out of the back door of Bergers’ house to the sidewalk, and the plaintiff followed her. He overtook her shortly, and they were then joined by plaintiff’s brother, Alfred. The plaintiff then by his counsel was asked if he had any conversation with his wife when he first caught up with her at that point, and he answered that he did; and was then asked: “What did you say to her?” This was objected to “as hearsay, incompetent, irrelevant and immaterial; no ways binding upon the de
The defendant insists that the court erred in refusing to permit necessary cross-examination of the plaintiff. The plaintiff had testified substantially that the alienation of his wife’s affections and her relation with the defendant caused him great worry and a nervous breakdown, and that by reason of it he was obliged to give up his position in order to recover his health. Upon his cross-examination it was sought to sIioav that, during the time of the alleged intimacy between Mr. Bergers and the plaintiff’s wife, the plaintiff himself Avas upon very
The offer of proof made by defendant’s counsel was not very comprehensive. It lias been said by this court that no offer of proof is necessary upon the cross-examination of witnesses. If, however, it is mot apparent from the question asked that the matter which it is sought to investigate is a proper subject of cross-examination, it is necessary to inform the court how the question asked will be connected with the examination in chief. Counsel should make it appear that his questions will legitimately lead to a proper subject for cross-examination of the witness. When it appears from the statement of counsel or offer of proof, in connection with the questions he pro
Plaintiffs wife began an action against him for a divorce on the first day of April, 1909. The court submitted to the jury an instruction stating as one of the issues presented that “the defendant procured or was party to the procuring of a divorce action brought by plaintiff’s wife against him in furtherance of a design on defendant’s part to destroy plaintiff’s said family and home relation with his wife.” The main issue tried was whether the defendant had alienated the affections of. the plaintiff’s wife. Evidence that the defendant assisted her or encouraged her in procuring a divorce was perhaps competent under the circumstances as bearing upon the main issue. It should not have been singled out and given in charge, to the jury. This seems to be conceded in the plaintiff’s brief, but it is insisted that objection was not made in time, and that the error was immaterial and was waived by the defendant. It is of course not necessary to discuss these features of the matter, as the error of giving this instruction will not be repeated upon another trial.
The court gave the following instruction: “You are instructed that any enticements of the plaintiff’s wife, if any, by the defendant, with a view of causing a separation, otherwise than those of an adulterous nature, must be shown to have been maliciously done; but the law presumes malice, if one wrongfully does acts tended to disturb the harmony of the family relations between husband and wife, and concludes that such acts were malicious.” It is insisted that it was error to tell the jury that the law presumes malice. There may be some doubt whether the jury would consider the word “tended” as meant for “intended” or for “tending.” If the wrongdoer intended
The defendant insists that there was not sufficient evidence in the record to sustain the verdict based upon the second cause of action alleged in the petition; that is, the seduction by defendant of plaintiff’s wife, and committing adultery with her. It is not deemed advisable to determine or discuss this assignment,- since the plaintiff may produce different and further evidence upon another trial.
In his petition the plaintiff asked for $25,000 damages. The verdict was for precisely two-thirds of that amount. Upon a motion for a new trial in the court below, affidavits of the jurors who tried the case were filed tending to show Iioav the jury arrWed at this verdict. It is insisted that these affidavits show that it Avas agreed by the jury that each juror should mark the amount that he thought the plaintiff should recover; that these amounts should be added together and the sum divided by the number of jurors to estimate the amount of the verdict, and that this result Avas so near tAvo-thirds of the amount asked for by the plaintiff that they agreed to accept thai: amount as the proper verdict. It is insisted that this was
On the 1st day of April, 1909, the plaintiff’s wife began an action for a divorce. They never lived together after that time, and when the case at bar was tried in the district court the divorce had been granted. The plaintiff testified that from the time of their marriage, which was something less than three years before the action for divorce was begun, until some time in November, 1908, their marriage relations had been pleasant and in all respects satisfactory. He testified that in November, or early in December, 1908, their relations were changed. “She became indifferent to me and the home in general.” lie was asked whether from the 15th day of November, 1908, until April 1, 1909, his wife’s attitude toward their infant child and their home was different from what it laid been prior to that time, and answered: “It was, she seemed to be indifferent.” She testified that during all of their married life he was abusive to her, and was very frequently guilty of acts of personal violence against her. In this she was corroborated by her mother, and to some extent by other witnesses who seemed to be disinterested and reliable. It would seem that, whoever was at fault for the alienation of her affection for her husband, it had been substantially accomplished on or before the 1st day of April, 1909. There is no evidence that she knew or had ever seen defendant prior to some time in January, 1909, several weeks after the process of alienation had begun, according to the plaintiff's testimony. In January, 1909, the plaintiff’s wife with.a young lady and a small
We think that the evidence upon the main issue presented was sufficient to justify a submission of the case to the jury. There was, however, no evidence to justify a verdict in the amount found. When we consider the relation that had existed between the husband and wife before she had ever seen or known anything of the defendant, and the plaintiff’s surroundings and conduct before and after their separation, it is impossible to believe that this verdict of $16,666.67 was based upon any consideration by the jury of the actual damages that the plaintiff might have suffered. It clearly shows' that the verdict was derived from something other than the evidence in the case. A verdict so obtained cannot be allowed to stand. The trial court required the plaintiff to remit a large part of the verdict. Tf the verdict had been of such a nature as to justify the belief that the jury had attempted to derive their verdict from the evidence, a remittitur might be required and an affirmance justified; but when it appears that the verdict must have been reached from passion or prejudice, or through some influence outside of the evidence, it is the duty of the court to set it aside.
The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.