121 Neb. 752 | Neb. | 1931
Plaintiff sued defendant for damages for alienating the affections of plaintiff’s wife. The jury returned a verdict for $20,000. Plaintiff remitted the excess over $15,000 and the court entered judgment for the latter sum. Defendant appealed.
William Sonneman, 23, and Artie Duckworth, 18, were married in North Platte on December 23, 1916. They had two children, a son, born February 24, 1920, and a daughter, born July 5, 1922. Until May 19, 1927, they lived together on rented farms in Lincoln county. In March of that year they had moved to a farm owned by defendant, who had several thousand acres contiguous to the house in which plaintiff and his family lived. He spent much time there looking after his interests. While there he boarded with the Sonnemans. He was married and knew plaintiff and wife were married. There was evidence from which the jury might infer that his attitude toward, plaintiff’s wife was not entirely Platonic and that it was not repulsive to her. It should be said, however, that both of them deny any wrongdoing, and the wife, particularly, accounted for plaintiff’s conclusions by testifying to his unreasonable suspicion of her and his unfounded jealousy of other men. Events occurring later in the season probably had more to do in bringing about the verdict of the jury.
On May 19, 1927, Mrs. Sonneman left for Iowa with her two children to visit her sisters. Her husband bought the tickets and put his family on the train. She had sold her chickens for $27 and he had borrowed $30 from Atkinson
The court admitted in evidence á decree of divorce, dated December 15, 1928, in a suit between Artie Sonneman and William Sonneman, for the purpose only, as he stated, of showing that the parties were married and are now divorced. See the proviso making such a decree competent evidence. Comp. St. 1929, sec. 20-1203.
The first alleged error by the court is that he failed to give an instruction requested by defendant on the subject of mitigation of damages. It was to the effect that any unhappiness between the plaintiff and his wife, not induced by defendant, should be considered in mitigation or in reducing the amount of damages. There was a paragraph of the tendered request telling the jury what evidence would be received in such a case. It had been followed in receiving the evidence but was not proper in an instruction. The court did not err in refusing to incorporate that mere rule of evidence in an instruction to the jury. The court in his own instructions to the jury clearly told them in various forms that the defendant could be held liable in damages only where his acts were the controlling cause of the plaintiff’s loss of the consortium of his wife; that if such loss was brought about either by the acts of plaintiff or by the voluntary act of the wife and
“Where instructions to the jury are requested and refused, but the instructions given by the court on its own motion had the same effect as those refused, error does not result therefrom.” Payne v. Clark, 117 Neb. 238.
We are of the opinion that the instructions as given by the court embodied the principles applicable to the issues and the evidence received as to damages, including any mitigation thereof by reason of things not induced by defendant.
Appellant assigns errors because other instructions were requested and refused and because of instructions given by the court on its own motion. The issues of fact and of law were simple and were minor compared with the feeling evidently apparent on the trial, as often happens in cases of this character. The court appears to have allowed all admissible evidence to be introduced on both sides and to have instructed the jury fairly and fully on the real issues. Without discussing these assignments at length, as would be necessary to reach the conclusions at which we have arrived, we content ourselves by saying that they present no prejudicial error.
The jury were charged with misconduct, but it does not appear in what way it prejudiced the defendant. Counsel for plaintiff are also charged with misconduct in respect of their arguments to the jury. Both parties had able, vigorous and apparently zealous advocates. In the tempera
It appears from a ruling of the trial court that much of the complaint arises from the fact that the objectionable remarks were evidently made in answer to the argument of the complaining party who was guilty of the first offense in that regard. “Argument of counsel based on matters not in evidence will not be reviewed if made in reply to similar argument of adverse counsel.” Nebraska, Savings & Exchange Bank v. Brewster, 59 Neb. 535. See Stratton v. Dole, 45 Neb. 472.
Appellant argues that the judgment is excessive, and cites Phelps v. Bergers, 92 Neb. 851, in which the trial court reduced a verdict of $16,666.67 to $10,000, and this court reversed the $10,000 judgment because it was not supported by the evidence. The facts are materially different. While the judgment in the case at bar is large, yet the jury, believing the evidence on behalf of plaintiff, were justified in assessing the damages at a very substantial sum. We will not say that the judgment is excessive in the circumstances found by the jury to be true.
The judgment of the district court is
Affirmed.