186 Iowa 177 | Iowa | 1919
The father of the plaintiff testified:
No objection was made to the reception of this testimony, nor was there motion to strike the same out.
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W'e now turn to the only brief point dealing with ruling on testimony. It is as follows:
“Defendants may show what they did to induce their son to live with plaintiff. What defendants said to accomplish the same purpose is a part of the res gestae, and is equally admissible. The fact that the statements were not made in the presence of the plaintiff is wholly immaterial. Such testimony is substantive of verbal acts tend
It is manifest this makes no complaint of the reception of testimony, and is an assertion that there was error in rejecting testimony for reasons stated. This disposes of the one assignment that goes to the reception of testimony, to wit, allowing the.father of the plaintiff to testify, in answer to a question of why plaintiff left the home of defendants, that she did so “on account of the treatment she was getting.” It may be assumed that the objections lodged to this testimony were well taken. But the appellants may waive error in that regard. They did so by limiting the brief points to the rejection of testimony.
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It will be noted the answer did not go beyond disclosing what was the mental attitude of the witness toward the plaintiff at the time spoken to. If what was stricken out is, in effect, not more than a repetition of what was not stricken out, then the striking out worked no prejudice. Is not that the situation? The witness was allowed to say what tends to show not only that she was willing to have plaintiff to remain in the home of the witness at the time when plaintiff and her baby were taken away, but that she was thus willing at all times. She was permitted to testify that, from the time of the marriage
II. Was it error to overrule a motion to direct verdict for defendants?
evidence in Maloney v. Phillips, 118 Iowa 9. In Heisler v. Heisler, 151 Iowa 503, at 508, we held the evidence sufficient to make a case for a jury as to one defendant and insufficient to make one against the other.
In Avery v. Avery, 110 Iowa 741, it is decided that judgment for alienation cannot be sustained on mere evidence that defendant disregarded the plaintiff, took occasion to show it in petty ways, and that, on a declaration by defendant that plaintiff had better go, she left her home, against the remonstrances of her husband. In Corrick v. Dunham, 147 Iowa 320, we ruled that there is not a sufficient showing of malice by mere evidence that defendants were sorrowful and indignant, and that they manifested ill will toward plaintiff when they learned he had secretly married their daughter. In Rice v. Rice, 104 Mich. 371, it is held insufficient to sustain a verdict because a father objected to the marriage of the son to plaintiff on the ground that she belonged to a certain church, and afterwards advised the son it would be unwise for him to live with plaintiff if she again joined that church.
On the other hand, we held, in Price v. Price, 91 Iowa 693, on evidence which, in its total aspect, is not more sub
Fact decisions make weak precedents; necessarily, the facts in the cited case are never quite the same as in the. case on trial. All that can be accomplished by citations is to furnish a general standard. That is to say, citations are of some value if it appear from them that, on proof in essence neither stronger nor weaker than that present in the cited cases, it has, been held either that there was or that there was not a case for a jury. In the last analysis, then, case law gives us no aid beyond furnishing a general measuring stick wherefrom to determine whether the instant case has enough support to go to a jury.
III. As to some of the things essential to be proved, there can be no dispute. The appellants are right in saying there should be no recovery against them unless there be evidence that they designed and intended to effect an alienation, and that what they did in furtherance of this design accomplished the alienation and separation. See Maloney v. Phillips, 118 Iowa 9; Bailey v. Bailey, 94 Iowa 598, at 602; Bruce v. Galvin, 183 Iowa 145. It is true there must be evidence showing malice. Pooley v. Dutton, 165 Iowa 745; Heisler v. Heisler, 151 Iowa 503; Miller v. Miller, 154 Iowa 344. The same cases hold that, even after marriage, the parents may advise their children, and that, if the advice be merely indiscreet, then, though it does tend to promote an estrangement in the married couple, the parents, are within their rights in giving such advice, unless the advice is prompted by malice. See, also, Busenbark v. Busenbark, 150 Iowa 7. It is true that the mere giving of improper parental advice is not alone suf
The jury could believe that, about a week before the baby was born, the defendant Sarah Stilwell came to plaintiff and told her that, after the baby was bom, Sarah would take it, and plaintiff could go out in the world and have a good time and get another man; and that she ex
In view of this conclusion, it is unnecessary for us to pass on a point raised by the appellee, to the effect that, where there are two or more defendants, and a joint motion is made by them to direct a verdict for insufficiency
“An instruction assuming there is evidence that parents conspired together and acted in concert with common, malicious design to alienate the affections of their son from his wife, where in fact there is no such evidence, is erroneous and prejudicial.”
This narrows what we may review to whether there is an instruction having the vice of having assumed evidence on the lines suggested in Brief Point 5. The instructions given fill eight pages of the abstract. Nowhere is it point
It is proper to add that nowhere in the exceptions taken to instructions is there an objection that any instruction assumed anything. And in Instruction No. 9, the court charged that “malice cannot be inferred, but must be proven by a preponderance of the evidence, the same as any other fact.” To be sure, appellants assert that Instruction 9 was inserted after defendant had filed his objection to instructions. There is no evidence in the record that this assertion is true. But no matter when inserted, it tends to show that the court submitted malicious design, instead of assuming that it existed.
“The defendants’ motion to vacate and set aside a verdict and grant them a new trial fully appears in abstract from page 44 to 54. Appellants are content to rest in the belief that this court will refer to said motion, as it sets forth specifically the views' of the appellants as to some matters involved in this appeal, and it is needless to repeat them here.”
It is doubtful whether it is our duty to give consideration to the claim that a new trial should have been granted. But we have considered it, and find that there was no abuse of discretion in refusing to grant a new trial because of newly discovered evidence. The foundation for the application is found, first, in an affidavit of Lucile Philips and Ora Stilwell, to the effect that, during the noon adjournment on the second day of the trial, affiant saw plaintiff just behind the juror Jones; that he, the juror, and plaintiff were passing out of the court room; that plaintiff engaged Jones in very earnest conversation, in a low tone of voice with her hands to her mouth, and in so low a tone that affiants could not hear what was said to Jones; that Jones responded in so low a tone that affiants could not hear what he said; that he smiled and nodded to plaintiff in the affirmative; and that neither the juror nor plaintiff seemed to notice either of the affiants at the time. The husband of plaintiff made affidavit to
“That prior to the trial I made all the investigation that I could in an effort to find testimony to present at said trial, and then I did not learn of the matters and things hereinafter set forth until the close of said trial.”
The statement of this conclusion is not such showing of diligence as makes it an abuse of discretion to have overruled the application for new trial.
We find no prejudicial error, and the judgment must, therefore, be — Affirmed.