173 N.W. 843 | S.D. | 1919
Action against the father, sister, and brother of plaintiff's husband for damages for the alienation of the husband’s affections. Verdict andi judgment for plaintiff. Motion for a new trial denied. Defendants appeal.
“W'hat did you say to your husband and what did he say to you ?”
Over the objection that this was not in the presence of any of the defendants, plaintiff was permitted to and did' answer as follows:
*208 “I asked him why he had not come up, and he said that he had not had time. Then I asked him why. He asked me why I had not written to him, and I said I had written to him two letters, and he said he had not received them.”
Over the like objection, plaintiff was permitted to give the further conversation at that meeting as follows:
“I asked him what the trouble was, and' asked him if he didn’t care for me any more, and he said, ‘If that is true, what Clarence said, then I don’t, otherwise I do,’ and asked him what Clarence had said, and he didn’t want to tell, and then I told him to bring Clarence out, and he did so.”
These rulings are assigned as error. Even if inadmissible, the statements of the witness were not in the remotest degree prejudicial-to defendants; but they did have a bearing upon the state of mind of the husband. Elmer v. Fessenden, 131 Mass 359, 24 N. E. 208, 5 L. R. A. 724.
“Did you, while you were there at your brother’s place in the spring of the year 1916, go into the plaintiff’s room, and did you at that time have sexual intercourse with her?”
“Defendants at this time offer to prove by the witness Mrs. ' Archie Smith that in the spring of the year 1916, while plaintiff was in the household of the witness as a domestic, and while Clarence Smith, one of the defendants, was working at the witness’ house, that the witness had' a conversation with the plaintiff, in which the plaintiff said to the witness, as follows: ‘Lewis*209 Sallee better be careful what he says. Clarence has never been in my room; the only thing he did was one evening he came in and put his arms around me.’
“At this time the defendants offer to prove by the testimony of Clarence iSmith, one of the defendants, that in the spring of the year igi6, he was employed at his brother’s place, nnd that at the same time the plaintiff was also employed at the same place as a domestic; that at said time the witness upon several occasions did have sexual intercourse with the plaintiff.”
These rulings did not constitute error. The testimony sought to be introduced was not relevant to the issue.
After a most careful examination of the record, and all assignments, we can discover no reversible error. This is peculiarly a case where the action of the trial court in denying the motion for a new trial, one of the grounds of which was the insufficiency of the evidence to sustain the verdict, should not be interfered with, except for manifest abuse of discretion. '