*1 v. WOODHOUSE WOODHOUSE E. Woodhouse Lorenzo Woodhouse Van Deusen Dorritt et ux. Term, 1925.
October Butler, Slack, Taylor, J., Powers, JJ. Watson, and C. Present: Opinion filed October Marriage Eights
Husband of after Wife—Parental Child— Element —Bur- Essential Alienation Affections—Malice of Presumption Showing den Malice— —Inferred of Malice— Support Ver- Sufficiency Evidence Determination of of Mo- Evidence on Evidence—Vieiv of dict—Inferences from tion Determining Whether Verdict—Test Directed for for Question Con- Jury Shows Evidence —Loss of Alienation — Separation Pecuniary sortium —Loss Service Loss— of Determined Spouse Liability Physical Absence — Acts and Con- Alienation —Whether Controlling Cause of Jury Controlling Cause Held duct —Lia- for Defendants An- Striking Out Part Partial bility Alienation — Dependent upon Question Answer swer —Exclusion of Question Not raised Be- Testimony Other Stricken Out— Question Preceding Striking Out low—False Reference Question Than Broader Responsive, but —Anstver —Harm- Striking Conducting Error —Order less Examination — Requiring Witness and Adverse Answer Evasive Out by Inconsistent Impeachment Direct Anstver— Statement— to Evidence Sub- Agency Exception Remoteness—Proof of stantially — without Ob- Answer Received Previous Same Held Material —Burden Show- jection Evidence —Certain Party Pregnancy Excepting Error on ing —Evidence of Marriage and Submission to Criminal Time Plaintiff Wedding Held Operation Shortly Admissible—Neces- after Instructions under Claimed sity Request Error— Flirtation with Woman Ad- Htisband’s Amother Evidence of Tending to Shoiv Aliena- Alienation —Evidence missible on Error Not Consortium—Claimed tion and Loss Sufficient- Husband tvith An- ly Specified Plaintiff’s —Interview of Woman, Relating other Held Mate- Divorce Plaintiff’s Immateriality Objection on Ground Alone—Erroneous rial — UX. ET WOODHOÜ'SE Subsequent Admission Testimony Cured Admission Objection Tending to Testimony ivithout Similar —Evidence An- Husband, Defendant, Relation Show Plaintiff’s *2 by Stamp Rubber Procured Woman —Evidence other of to Mail Husbmd Admissible Father Forward Husband’s In- Party Damages —Cross-Examination jurious of — —Evidence of Physical and Husband’s Absence—Mental Effect of Necessity Stating Suffering Ob- Discretion— of of —Abuse - Mind State jection Beloiv—Evidence Husband’s of of Question Not to Held Caused Conduct— Defendants’ Relating inNot Case—Evidence Assume Matter Effect Adverse on Husband Attitude = n Plaintiff’s of Defendants’ Relating to Disinheritance of Plaintiff’s Plaintiff —Evidence Husband —Disinheritance as Actionable Wrong Presump- — Relating Conditionally tion Evidence Admitted —Evi- Tending Relations dence to Show and Mutual of Affection and Explaining Husband —Evidence Material as Plaintiff Testimony Inadequate Briefing Tending Other — —Evidence Scope to Show Cir- Interference Plaintiff’s Credit— of cumstantial Evidence—Wealth Admissible of Defendants Question Admissibility on Exemplary of Alienation — Damages, Where Wealth One Excess of Defendant of Damages against Joint Liability Other— Tort-Feasors — of Joint and Liability Husband Joint Wife Tort-Feasors — of Tort-Feasors Several —Incumbent to Shoiv Plaintiff on Exemplary Damages Means Defendants of —Cross-Exam- in Examination ination —Discretion Court Witnesses of of —Hypothetical Questions Arguments Excep- — of Counsel — Charge tions to Lan- Claimed Exceptions —General —Where Used, guage Exception Not Sufficiently Spe- Not Court — Actuating Charge Held Applica- cific—Motive Alienation — ble to Evidence—Limitations Presumptions on of Review— Prejudicial Argument Though Unexcepted to as Review— Basis Motion To Set Verdict Aside—Such Motion Ad- of dressed to Trial Court’s Showing Required to Discretion— Set Verdict Aside—Size Verdict Setting as Basis for Damages Exemplary Discretionary with Jury— Aside— Evidence on Motion Consideration to Set Aside Verdict— Spectators Demonstration as Cause—Power to Grant and Fixing Amount Remittitur —When Verdict Will Not Be Exemplary Damages Disturbed —Nature of —Discretion WOODHOUSE Granting Governing Admission Cotirt Remittitur —Rules Trial —Re- Rejection Evidence on Petition Netu freshing Application Trial New Recollection Witness — Governing Its Addressed Court’s Discretion—Matters Establishing Grant Has Burden of Refusal—Petitioner Claimed Misconduct—Misconduct Juror. marriage, being interrupted Parental 1. interest not children’s right parents have thereafter continue their solicitude parental care, protected the continuance such interest. parent In view of natural of normal solicitude for his child’s welfare, presumes parent, influence, law in his associa- tion, child, acting rights, and conduct with within his parental will not malice infer from mere fact of interference child, proof in marital relations of absence inter- just
ference was without cause or excuse. *3 spouse causing 3. Parent is not liable to of his for child their separation, given by persuasion if counsel and used him fairly honestly such as he and considers to be called for interest, good child’s best so that acts are in faith and with- out malice. parents superior right have
4. While interference marital child, may justify relations of and such interference for causes justification strangers, be which would in favor of relation parent justify attempt and child does not deliberate with- bring separation spouse, cause out about of child and and justifiable parent tort, when done without cause is liable in any person. like other generally, always, 5. Malice is if not deemed an essential element for of actions alienation. against parents
6. In action for husband’s alienation of his affec- tions, plaintiff showing complained has burden that conduct of was actuated malicious motives. action, parents presumption
7. In such acting from malice, natural solicitude for child and from is not not to be weighed evidence, presumption being function of such loca- probative. tive action, implies 8. such In malice no more than the intentional doing wrongful just excuse, of a act without cause or ex- v. WOODHOUSE WOODHOU'SE may proved, inferred press be but malice be malice need not conduct, it is in issue. cases where as in other from support Sufficiency verdict to be determined of evidence to 9. treating whole, and considered as from the evidence though weighing piece piecemeal of evidence as each it standing alone. upon course of based the natural 10. Fair from evidence inferences experience much as the of human are as events and principal facts flow. the' deductions Supreme reviewing overruling exception of defend- 11. Court determining motion for is confined ants’ a directed verdict support tending alle- material there is evidence whether may conflicting gations complaint, and where evidence accept only supports verdict, must consider may most be drawn therefrom reasonable inferences all plaintiff. favorable affections, is not to a In for alienation of essential 12. action recovery allegations support evidence should all being employed accomplish alienation, the test means supports alleged facts in com- whether evidence ultimate plaint. parents affec- 13. action husband’s for alienation of his liability question tions, make for matter of evidence held to jury. for alienation of husband’s is loss of 14. action affections Gist of husband, affection, his con- which includes his consortium society, every conjugal jugal cooperation in and his aid and relation. essential is not to maintenance of action alienation husband’s affections that thеre of service should loss any pecuniary loss whatever. parents against husband’s affec-
16. In action alienation of his injury tions, dependent character is not actionable *4 wrong physical husband; separation or absence could be though plaintiff living inflicted husband at the time. right affections, 17. To of action for alienation of husband’s confer party charged conduct of therewith need not be sole cause of separation, controlling alienation or but it if is sufficient cause. question jury 18. held to Evidence make whether acts and conduct controlling plaintiff’s of defendants were loss con- cause WOODHOUSE conclusively sortium, was due such loss and'not show voluntary plaintiff’s act. 19j partial Liability may husband's be incurred alienation affections. brought Striking part contents 20. of answer which out stand, proper letter, permitting where remainder to held materially part part answer. affect relevant excluded did not may excluded, part provided 21. Inadmissible of an answer mean- ing changed. part left is not against parents for of his affec- In action husband’s alienation 22. tions, where had that he had told husband testified him, parents threatened to disinherit but that fact, response question, you was not the and in “Were testimony lying was,” answered, her?" “I held where leading up quoted question and answer was excluded on objection, correctly ques- defendants’ excluded that court also, against and answer tion defendants’ claim that should it stand. Supreme question 23. Court will not consider of error not raised by objection in court below. Striking thereby 24. out certain and answer held give succeeding questions “a false reference.” parents 25. action husband’s for alienation of his affec- (cid:127) tions, having where husband testified that he had never re- meddling parents, sented of his was then asked whether he parents resented the attitude his had taken toward his mar- riage, replied thought unjust, that he it was held that striking out such last answer did not alter reference contained question immediately following, asking whether he had express tried to his resentment to them. responsive to, question, Where answer was but broader than overruling responsive of motion to strike out answer as not held without error. testimony objection, already
27. Admission of over where -witnesshad thing objection, error, testified to the same without if held harmless. conducting 28. Order or manner of examination of witnesses is so far a matter of discretion with trial court that it bewill re- only viewed for abuse of discretion. properly 29. Where adverse, court found witness to be abuse of discretion for court to strike out answer considered *5 v. WOODHOUSE “yes no,” opportunity answer, require direct evasive and being qualify explain-or denied. answers not his impeachment purposes be coextensive need not for 30. Statement enough being statement, previous if are incon- with sistent. trial court Question of discretion for is matter remoteness
31. except abuse of discretion. not reviewable direct, may agency shown acts be need not Proof 32. parties. substantially al- Exception same as answer to evidence 33. present objection ready given reversible not without does error. parents affec- for alienation of his husband’s 34. In action participated tions, defendants claimed that where having credit her on her husband’s certain bills contracted route, a circuitous to him in Nevada in Vermont sent question concealing her, purpose asked his whereabouts working employee bank he was bank as to whether while receiving against husband, replied, bills to which hе “I through bank,” go held material. saw bills question action, husband whether wife wasn’t In such asked 35. way trip, replied certain he in tears most of on to which destination, a little after their arrival at but that
she cried there, going remember that she was tearful while he didn’t against objection nothing to held admissible there was being therewith, such connect defendants’ the circumstances grief jury question alienation whether was due to as to make affections, material in which event evidence was of husband’s damages. on action, where did not In such defendants claimed that
36. respect testimony promised connection with admitted make did that evidence not connect defendants over question, in brief acts in mere assertion of want of such showing requirement evidence does not answer that burden of excepting party. error is wife, pregnant action, who was at time of such evidence that marriage by husband, operation submitted to criminal request, wedding at his admissible short time after held against objection that she did had no what relation de- fendants, admissibility de- as the ET WOODHOÜ'SEv. WOODHOUSE UX. affair, having anything pendent to do with grounds. several other but was admissible on *6 court, action, objection 38. was imma- In such where over delivery envelope special postage, terial, bearing first admitted city address, which was addressed to husband defendants’ returned, forwarded connection to husband offered in testimony plaintiff’s refusal show its and return concealing her, but subse- husband was himself jury, quently, and before exhibit was shown to court reversed ruling envelope, and excluded defendants’ contention that jury claimed error was not thus cured without instructions to disregard envelope offered, made claims when was held untenable, request of absence for such instruction. action, such of 39. In evidence husband’s flirtation with another tending woman held admissible as to show alienation. action, 40. In such while causal connection between of acts defend- shown, admissibility ants and alienation must be evidence of tending to show alienation and loss consortium is not de- pendent upon knowledge defendants’ of or connection there- with. specification error, referred
41. of errors relied Claimed upon by party part excepting record, and made held Supreme Court for review. before against parents 42. In action husband’s alienation of his affec- tions, testimony of woman with whom husband had on carried she had an interview flirtation that with her brother and husband, meeting plaintiff's plaintiff, some time after at which subject plaintiff’s discussed, divorce was held material on question of alienation. ground immateriality alone, 43. To sustain it must clearly appear irrelevant. testimony objection, error, 44. over Admission if harmless held questions subsequently where similar and answers were re- objection. ceived without parents 45. In action husband’s for alienation his affec- tions, undertaking in which show circum- defendants, stantial evidence the true relation between her husband, carry- and another woman with whom he had been ing flirtation, on a evidence that he had' heard from such woman, respecting proposal testimony some referred to in his plaintiff’s proceedings, days divorce a week or ten there-
WOODHOUSEv. WOODHOUSE to, admissible, after, snow event referred held not to keeping informed. each others show that action, went to claimed that husband where such city stay, plan bring part permanent about another alienation, all connection with such defendants denied knowledge particularly change, that he city, evidence other that husband’s to remain such intended forwarding stamp prepared for use had a rubber father city afforded a fair inference his son in such mail to his son’s residence somewhat of father understood nature, permanent admissible father and was to connect the city. presence son’s in such with his action, of defendants as to 47. In cross-examination one such friendly plaintiff’s husband with confidential relations cousin, plaintiff’s who hus- had introduced defendant’s something and knew another woman their subse- band to *7 being intimacy, improper, party. quent witness held not action, testimony injurious plaintiff to effect 48. In of as such inability absence, of her find her health of her husband’s was, knowledge him, and of lack where he held of admis- damages. question sible on alienation, controlling 49. action for defendants found to In cause consequential estrangement damages for are liable what- nature, including physical suffering mental and occa- ever by alienation. sioned party injury by excepting failed to show refusal court 50. Where objection, out evidence admitted without but ob- to strike immediately answer, jected after held that there was requiring reversal. of discretion abuse exceptions evidence, Supreme consider 51. Court need not where any ground objection fails to show that was as- record signed below. against parents alienation 52. husband’s for affec- In action of his tions, question whether it asked husband as to he considered try get recognize hopeless them his wife as a member family, affirmative, proper against answered in the held objection opinion giving that it called of witness without anything upon opinion based, question as called mind, and for witness’ state of was direct evidence of effect defendants’ conduct. action, questions cross-examination, 53. In such asked husband on UX. ET WOODHOÜ'SE negotiations, alluding assum- erroneous as to certain held not negotiations case, ing being evidence not in there existence of their nature and defendants’ connection from which case fairly appeared. therewith husband, action, question he had testified to 54. In such asked after father, to whether at continued attitude of his adverse must either certain time he had become convinced that he independent support wife find an means of for himself and separate her, replied he to which consideration, objectionable up was not had come immaterial, being apparent answer would it that an affirmative material. have been action, statement husband’s father to the 55. nothing son, more that he to do with his that he effect escapade plaintiff, him on of his had disinherited account might hoped time, that he hut be reinstated at some future against objection immaterial, it admissible although accomplished. after made alienation had been purpose alienating Disinheritance for malicious 56. son’s affec- wrong. tions is actionable admitted, having Where evidence was case several codefend- ants, against over that it was not admissible one of up, them unless connected and court said if no connec- later, tion was made matter could be taken care of in absence showing contrary presumed will be that connec- properly tion was made or evidence restricted. parents 58. In action husband’s for alienation of his affec- tions, after husband had testified that while he was sick in hospital, his mother came into room where he and were, upon seeing plaintiff turned her back on abruptly speaking *8 and her, left room without to con- cerning position whether he fеlt forced to take a in favor of against other, objectionable one and held not as immaterial incompetent. action, testimony plaintiff 59. In such marriage that before her gave up plans she she had made to do settlement work at request husband’s was admissible to characterize their rela- tions and to show mutual affections. ' action, plaintiff 60. letter to from husband before their mar- riage, character, containing affectionate admonition about going place, to certain held admissible to show his affec- v. WOODHOUSE engagement dinner tion, had cancelled that she and evidence any pos- to meet place was admissible in letter to referred doing con- was that she admonition from such inference sible regard. trary wishes in to his marriage by plaintiff had husband before written to letter
61. Where showing plain- purpose for his affection for been admitted congratulations tiff, ex- made reference to and such letter therein, person named testi- certain them to both of tended engagement mony plaintiff had been announced that their against admissible, person was that it was to such understanding immaterial, complete con- of matters to enable in letter. tained against parents In action husband’s for alienation of his affec- 62. tions, plaintiff did accom- where claimed pany them, trip husband aon to Florida with because of a previous arrangement Louisville, visit testimony Kentucky, by her she went to Louisville gone relations after her husband care for some sick had against objection Florida, was imma- admissible that' it why being terial, went to reason she Louisville material issue in case. adequate referring exception Merely taken does not constitute 63. briefing. against parents for alienation of his affec- husband’s In action 64. seeking tions, show interference where father with her credit at store at which she husband’s name, evidence that father and husband’s husband’s account present proprietor bank directors’ such store at certain immediately city, meeting, while husband out of and that that her credit at such store was she was notified thereafter tending prove terminated, held admissible as circumstance fact. ultimate reception of eviden- is allowed in circumstantial 65. latitude Great supposed tiary facts, everything that tends to connect evidentiary prohandum is admissible to with the fact faetum prove that fact. parents his affec- alienation of In action husband’s plaintiff’s tions, knew husband was evidence where there wealth, way general there was also evi- of his father’s his mar- disinherited because of husband had been dence that brought riage, pressure bear had been financial *9 v. WOODHOUSEET UX. WOODHOUSE accomplish alienation, evidence of wealth him to father’s question was admissible on of alienation. right displeased parents have disinherit son because 67. While they marriage, right use threat of disin- have no wrongful accomplish purpose. club heritance as a against parents 68. In action for alienation of his affec- husband’s although father, tions, greater of wealth of husband’s mother, bearing upon ques- offered as that of husband’s than damages, exemplary properly held received when its tion of against possible application was verdict limited to husband’s father alone. Only damages jointly 69. for which are liable can be recovered joint joint tort-feasors verdict. against joint tort-feasors, damages exemplary 70. In action in which sought, are where one of defendants is innocent of offense.for damagеs punishment, plaintiff which such is not concluded by having brought against all, may against suit discontinue during proceed against innocent defendant trial and defend- punitive damages. ants who on evidence are liable for Liability joint 71. of husband and wife as tort-feasors is unaffected by marital relation. against defendants, 72. When action is several financial condition determining of one cannot be used as basis for amount of exemplary damages against any-other, unless that one is least wealthy all, but evidence of financial condition of indi- may only against vidual defendants be admitted to be used particular defendant case verdict is him alone. against joint may 73. recovery against In actions tort-feasors there proved guilty. or either of defendants to be against joint tort-feasors, 74. In action including the issues on trial separate liability defendants, evidence directed to establish- ing liability is not irrelevant. exemplary damages, 75. On upon plain- incumbent tiff to show actual means of defendants. Questions cross-examination, 76. so framed that affirmative an- clearly swers would adduce evidence relevant, that would be improper prompted by are not something rendered because written, questions witness where do not call for contents writing. of- Question covering matter, material asked on redirect examination, objected growing to as not out of cross- UX. ET v. WOODHOUSE *10 court, if even examination, of discretion admissible held strictly examination. redirect not parents his affec- against alienation of for husband’s In action
78. opinion respecting question tions, hypothetical his asked doctor plaintiff’s of his examination in view condition as to cause of against objection properly permitted stated, held facts and up de- with the facts were not connected of such certain fendants, not being enumerated did made that facts no claim liability making being evidence, appear and there jury. fact for of defendants of objec- argument plaintiff’s action, not counsel held of In such 79. early case, relating neither as to claim abandoned tionable justifying testimony plaintiff’s her of counsel nor statements excepted argument estopped plaintiff make to claim that to. counsel, argument action, plaintiff’s In 80. such of relating per to an abortion into case evidence introduced jury plaintiff, which -was formed on to sustained argument, re consider held not to show not to
instructed versible error. charge according Exception to the court to to failure of 81. requests, charge specified numbered and to the as certain request only, thereon, given reference to number of each attention, being necessary general require it too to to held requests, upon point relied out matters to indicate given charge was claimed be to erroneous. wherein charge, reciting language Exception substance of claimed 82. by court, unavailing, been used held where court have did not language, such either in fact or effect. use parents In 83. action husband’s alienation of affec- exception charge tions, part which stated that “may damages,” ground now recover once for all and all [plaintiff] it “the fact overlooked that she was then and alimony drawing husband,” now is held not suffi- ciently specific apprise alimony receipt court of claim that damages. should considered in reduction of action, parents maliciously 84. In such acts of husband’s intended to alienate their son’s affections from were nоt lawful duty acts such plain- as did constitute breach of toward tiff, principle actuating hence that motive one who exercises right legal application. immaterial has no UX. ET v. WOODHOUSE presence action, of defend- instruction that actual 85. such “the ants, during process them, alienation is not or either of * * * necessary enough they shown. either to be producing controlling influ- had a cause in them may presence,” ence have been exerted without their held law, objectionable inapplicable correct statement evidence in case. findings rulings exceptions questions arise on Where below, scope inquiry review claimed is limited to court indulge Supreme every legal errors, and is bound to Court presumption support of action of court. reasonable trial argument prevents exception prejudicial 87. Rule that absence raising impropriety of issue its matter of law does not as. argument evidentiary deprive such value the issues *11 set aside. raised motion to verdict legal 88. Motion to set verdict is addressed to discretion aside of court, only trial whose action is reviewable for failure to discretion, or
exercise such for what amounts in law to abuse of discretion. justify Supreme finding setting 89. To Court aside of court trial bias, passion, prejudice, that verdict was not result of or it appear, record, there is no must reasonable basis finding. therein suit, size of 90. In alienation verdict alone held not to show it bias, passion, prejudice. was result of or suit, record held afford 91. In alienation reasonable basis for finding bias, pas- of trial court that verdict not result of prejudice. sion, or admitting exemplary damages, In a of 92. case amount of such allow- discretionary largely jury, determining ance is which they standing should take into account character and of de- fendants, they malice or wantonness act for which are guilty, standing wealthy found financial of least defendant. parents 93. In action husband’s for alienation affec- tions, exemplary damages fact that were allowed in excess mother, wealthy of the individual wealth of husband’s the least defendants, controlling is not on of whether ver- bias, passion, prejudice. dict was result or court, disposing 94. ground Trial of motion to set verdict aside on bias, passion, prejudice, or should consider evidence most favorably plaintiff. v. WOODHOUSE spectators is not sufficient in a court room 95. Demonstration rights appears trial, granting it new unless reason for thereby. prejudiced parties grants remittitur, should, in order to avoid Where trial court it 96. by forcing upon danger injustice him an to defendant acceptance judgment, amount of which excessive fix denied, by plaintiff minimum new trial would be sum which expected jury reasonably allow, and which court could he clearly could see was not excessive. grant not confined to cases where it is a remittitur 97. Power to possible verdict should have been with to determine what by computation. certainty, as legal damages, is no measure of 98. In where there cases unliquidated judgment so that amount thereof rests in although considerably jury, may verdict be and discretion judgment ought been, it more or less than of court to have disturbed, great verdict will not be unless it is so or small perverted judgment, accident, to indicate that it is result of gross or mistake. require trial finds so excessive as 99. Where court verdict its interference, passion prejudice, it was and that not result of proper case for correction of verdict remittitur. proper remittitur, damages
100. In trial fix casе court should jury reasonably expected the minimum sum could allow, clearly and which court can see is not excessive. disposing trial court has abused its Whether discretion in motion to set verdict aside is determined whether discre- grounds tion of has court been exercised on or for reasons clearly tenable, clearly or to an extent unreasonable. *12 102. Where trial court on motion to set verdict aside has ordered a. Supreme only remittitur, Court will interfere when award of manifestly grossly lower and court excessive. Exemplary damages action, 103. in a civil while criminal bar to proceeding act, part for same allowed nature punishment. parents 104. action husband’s for alienation of his affec- tions, excessive, refusal trial court to set verdict aside as law, evidence, misconceived in not based on and as based upon by bias, passion, prejudice, influenced and in directing reducing damages specific sum, remittitur held proper exercise of its discretion. WOODHOUSE v. ET UX. Notwithstanding petition 105. for new trial is addressed discretion court, rejection upon peti- admission of evidence such governed ordinary legal tion rules. support trial, 106. Use affidavit made in of motion for new memory deponent, who, although testifying refresh wit- petitioners appointed by ness for before commissioner court testimony, adverse, proper. to take held Applications ground jurors for new trial on of misconduct of court, applica-
are addressed to sound discretion of whether granted being tions should be determined in each case particular facts therein. only 108. Petition for new trial involves not determination of dis- puted facts, presence probable injury or absence of party through complained of, defeated misconduct whether parties, attorneys, implicated either their or friends were misconduct, underlying question public policy. ground alleged jury- 109. Petitioner for new trial on misconduct of establishing men has burden of claimed misconduct. jurymen expressing opinion 110. Claimed misconduct about outcome, facts in case and its held not established satisfactory required proof by law. op Plea, general Trial by jury issue. at tbe Action Tort. September Term, 1922, County, Moulton, Chittenden J., presid- ing. judgment Verdict and for plaintiff. The defendants ex- cepted. opinion states ease. Affirmed. Enright,
J. J. Bullard, V. A. C. Darling, R. Guy Paige M. for the defendants.
Warren B. Austin for plaintiff. J. The are the parents plain- Taylor, and the tiff Douglas Woodhouse, wife Charles generally called Douglas marriage plaintiff Woodhouse. The and her husband in September, 1918, occurred following acquaintance and courtship extending several years. over marriage Their engage- ment was made February, 1918, but was not announced to the defendants until a short time wedding. before the Douglas years was then about 30 old and the years younger. five Douglas The relations of and the estranged became *13 v. WOODHOUSE ET UX. WOODHOUSE 106 early and wife together as husband live they to ceased Nevada, Keno, Douglas went to fall 1920 In the of in 1920. pending which were proceedings divorce instituted where he county court. tried this case was when of affections alienation of the for the The tort action general is a denial. answer defendants’ The plaintiff’s husband. resulting September Term, 1922, by jury at the trial There was argued The plaintiff. case judgment in a verdict exceptions defendants’ May Term, 1924, on this at the Court ground misconduct trial of for a new on the petition aon sufficiency relate jurors. questions first briefed of by a a directed verdict. Some evidencе, raised motion for of the by re- presented the motion also points of covered overruling exceptions charge. As saved to quests to many the refusal motion for a verdict and to directed charge questions they do re- requests the same raise quire separate treatment. grounds motion for numer- of the a directed verdict are unnecessarily prolong opinion
ous and involved. It would this grounds profitable It will be discuss the seriatim. more light principles examine the whole evidence in the of the under- lying right supplementing gen- plaintiff’s recovery, particular points the consideration eral discussion adequately not thus covered. give prominence
Defendants’ counsel in their brief to what they angle departure.” Speaking refer to as “the parents daughter-in-law they relations of assert without qualification parents daughter-in-law legal duty. owe no Manifestly is not statement, speaking gener-. an accurate ally. proper A understanding rights parents and duties of respecting marital im- relations of their children is of vital portance questions correct determination presented (cid:127) may marriage review. be admitted that the of the child imposes obligation parent child’s receive the spouse within the bosom his family. own said It has been may parents that the aloof, recognize hold wife, decline to show no interest her children and even disinherit their son for marrying approval; without short, their law requires only unjustifiably do not meddle with the felicity domestic and affections their Cooper son and wife. v. Cooper, Kan. Pac. *14 WOODHOUSE in their interest parental held uniformly is [1, 2] parents marriage, and that by interrupted their is not
children care and parental and solicitude their right to continue a have The law interest. such of in the continuance protected to be normal for the parent solicitude of the recognizes the natural indulges presumption accordingly child, and his welfare of he the child with association, and conduct influence, in his will flow malice inference of rights. No acting within is marital rela in the interference parental fact of mere from the go must further proof cases In such of a child. tions or just cause excuse— was without interference show that such Fronk, App. 159 Mo. Fronk v. malicious. words, in other their a 543, 141 S. parent will separation, The authorities W. 692. if the counsel liable to the are agreed given and spouse his child persuasion used proposition causing honestly to be called for fairly considers him are such as he in if are done child; is, his acts by the interests best subject The law of the is well good faith and malice. without R. Knibbs, 556, 762, 79 N. 9 L. in v. 193 Mass. E. Multer stated prior are 958, where the decisions S.) 322, 9 Ann. Cas. (N. A. Roe, 120, see Roe v. 315 Ill. 145 cases For additional collected (N. S.) 1471, 522; notes 9 L. R. A. R. L. 804; 13 C. § N. E. S.) 465; 1917E, 1017. (N. Ann. Cas. 46 R. A. 322; L. recognizes superior right a of inter law While the [4-6] justify and will such interference part parents, ference on in justification strangers, favor would be which for causes may parents influence their child not to be understood it is impunity. spouse parent a from relation of separate justify attempt a deliberate does without cause child bring separation. justifiable a To do so about such without cause person parent for which the like other is liable. is a tort many practically cases, including This is all the the doctrine (N. S.) 322, See note 9 R. cited defendants. L. A. 324. parent It is sometimes said that action the liable is only maliciously bringing he about separation; when acts stronger required and, again, that evidence is to maintain the against parents against strangers. action than distinc But the mеrely tion is a terminology. found in the cases matter principle entire The distinction accord. between liability parents strangers only that of is what will v. WOODHOUSE
108
generally,
is
always,
Malice
if not
justify
interference.
their
This is
of actions for alienation.
an essential element
deemed
L.
adultery
seduction
is not involved. 13 R.
held where
C.
so
492,
Brunelle,
67,
v.
Mass.
E.
515; Geromini
N.
§
(N. S.) 465;
And,
L.
46 R. A.
30 C. J.
974.
aliena
§
where
adultery,
pre
malice in
is
tion
means
it seems that
law
Pierce,
wrongful
from the
act.
Vt. 322,
sumed
See Miller
(N. S.)
However,
85 Atl.
620, 43 L. R. A.
there
cases,
merely
difference
classes of
:
two
is evidential
may
malice
stranger,
In case of
be inferred
the fact of
good
alienation,
parent,
presumed
while
faith will be
case
indicating
in the absence of circumstances
malice. So it is that
against parents
spouse
in actions
the plaintiff has the burden
*15
showing that
complained
conduct
of was actuated
Hodgkinson
Hodgkinson,
269,
malicious motives.
v.
43 Neb.
577,
61 N. W.
27 L. A. 120,
759;
Love,
R.
47 A. S. R.
Love v.
98
562,
App.
Lannigan
Lannigan,
Mo.
73 S.
255;W.
v.
222 Mass.
198,
McLery McLery,
285;
137,
110
v.
186
N. E.
Wis.
202 N. W.
156;
Jeffries,
App.
79
513,
908,
Crowell
Ind.
134 N. E.
137
v.
(N.
E.
46
556;
S.)
N.
note
L. R. A.
465.
eration where
[7]
It
follows
parents
that the
are
charged
quo
animo is
alienating
important
affections
consid
aof
child. Was it
malicious or was it inspired
proper
solicitude
happiness
welfare and
of the child?
re
viewing
evidence,
arewe
to assume that the motives of the
defendants in
they
good
what
did were
unless there was evi
fairly tending
dence
contrary.
to show the
But the claim of
the defendants that
the presumption indulged in
favor
their
weighed
authority
as
Cowdry
should be
evidence on the
(77
141)
60
359,
Will Case
Vt.
Atl.
rejected
must be
as un
presumption
function of this
sound. The
is
locative
not
probative, as to which see
v.
Sheldon
80
Wright,
298, 320,
Vt.
Ry.
807;
67 Atl.
Rutland
Lt. &
Co. Williams,
Pr.
v.
276,
90 Vt.
281,
Zabarsky
85;
Employers’
98 Atl.
v.
Co.,
Ins.
97
377,
Vt.
sense used in
tional
Direct evidence of the
but malice
it is
[9, evidence Defendants’ counsel have reviewed the 10] insufficiency detail, piecemeal, asserting treat it support the verdict. circumstance that circumstance sufficiency. This not the Separate real test of acts or its may not separate malice, instance, lines of conduct show together may pur a number of acts considered disclose while pose appear sepa from those acts would considered ‘‘ ’ rately. saying many a familiar make a littles mickle..’ properly, To characterize the defendants’ conduct it is neces sary light to consider their actions of all the circumstances together. What, standing might regarded taken alone, as an insignificant may act, entirely take different hue when light of Besides, regard viewed other circumstances. must be had for the cumulative effect whole evidence instead weight piece of each standing of evidence alone. More over, the fair evidence inferences the nat based experience ural and of human course events much evi principal dence facts from which the deductions flow. v. Kamuda, State 306; 98 Vt. 129 Atl. Bingham, Austin v. Vt. If were one conceded of the individual acts of the defendants necessarily shown evidence disclosed impropriety conduct, still it would not follow that support as whole did not the verdict. *16 following are some of the recent cases where the dоc respecting
trine
the use of circumstantial evidence to establish
alienation of affections has been discussed:
Freun,
Mussellem v.
45,
Okla.
370; Hope
101
225 Pac.
v. Twarling, 111
793,
Neb.
N.
161;
Hooper,
198 W.
v.
122
118,
111;
Me.
119 Atl.
McGuffie
Leavell,
Leavell v.
122
App. 654,
Mo.
99
460;
S. W.
Briles v.
Briles, 66
444,
App.
449;
Jones,
Ind.
112 N. E.
Jones v.
96 Wash.
172, 164
757;
Cornelius,
Pac.
Cornelius v.
1,
233
135
Mo.
S. W.
(C.
65;
A.)
Nelson v. Nelson
C.
110 signs with abounds record behalf; this, in that because Wrongful motives his son’s wife. antipathy for the defendant’s They the mind. good impalpable condition ones are like —a by mind’s by eye body, seen are not to be * * # acts visible They may proved only those eye. be mind—words in the shadowing forth existence words their feelings.” of inward manifestations standing outward acts pertinent: J., in Nelson v. Nelson Mantón, The comments experience that human the facts not unmindful of be “We must accu from the home, results resulting in a broken kind, of this disintegrating This stealthily carried on. efforts, mulation subterfuges. A plaintiff many may resorted to work strongest out kind of evidence to make may produce the not * * * does evidence is circumstantial fact that ease. deprive potency.” nor it of impare its usefulness sion of what dence [11] Counsel devote it tends to considerable quote show. extensively space in It from the defendants’ hardly their brief to necessary discus evi say on motion is con review the of this Court function that the sup tending there is evidence determining whether fined to weigh allegations complaint. cannot We port material conflicting, as it is we can consider evidence, and, so far Where different supports the verdict. inferences only such as we are bound to reasonably be drawn from the evidence may plaintiff. most favorable to the accept inference Defendants’ counsel take up complaint para evidence graph by paragraph and undertake show that the case. particular the action on branch of the does not sustain challenge bearing Thus, they evidence the various alle gations of means which it is the alienation claimed of their accomplished, affections was assert want son’s either the allega insufficiency support particular or the evidence to profitable tion. But review supports manner. The test is whether the evidence the ultimate alleged in complaint. recovery facts is not essential to a support allegations that the evidence should all of the of means employed accomplish the alienation. 13 R. 1463, C. L. 1464. words, prove other need not more than is neces sary recovery though alleged. Snyder to a ismore Parmalee, 496, 649; Vt. Bancroft, Atl. Bosworth v. 74 Vt. Respecting Atl. employed means the defend- *17 Ill v. WOODHOUSE WOODHOÜSE jury to the went alienation, the case accomplish the ants use and. by influence brought about that it the claims pay husband to encouraging plaintiff’s wealth of their then, unimportant, It is MacClelland. to one Mrs. attentions not. laid or alleged proved were other means whether review of the It would evidence. not be It covers profitable to more than 1,500 undertake any pages extended besides examined the evi We have large written exhibits. number of respect thereto of counsel the extended comments dence and case, importance o£ the with the the care commensurate for a directed the motion verdict and are convinced that not, be, questioned nor can properly overruled. It is way alienated plaintiff’s affections some became husband her, resulting are satis the loss of his consortium. We believed, jury would evidence, fied there was if from which the through a right have to find this came about active interference of the defendants prompted malice toward plaintiff. marriage
This
was in no
sense a misalliance. The
good
was a
standing.
talented woman
character
and social
Douglas
acquainted
been
for
years,
had
with her
several
for
years
marriage
least three
before the
had been a constant
visitor at her
home, much
this time an ardent suitor.
It
union formed
mature deliberation. There was
evi-
no
dence of misconduct or
part
unworthiness on the
plaintiff.
contrary,
On the
both defendants
they
testified that
at no time
any
for criticizing
cause
her. Both testified
did
they
regard
her as beneath
son,
their
throughout
trial
they professed to have had
marriage.
follows that there is a total
absence of
parental
excuse
interference
advice or otherwise such
parents might
give
without malice. Besides, the defendants
claim,
do not
but rather
deny,
even advised a separation; so the principle on
much
argument
the defendants’
is based
no appli-
has
cation. See Lockwood
Lockwood,
112 accomplished be- substantially been plaintiff for the tions woman. Con- MacClelland acquainted with the he became fore her husband plaintiff sidering evidence showed that the themselves, left company when other’s happy in each potent is circumstance separation, their it a time near even to than of the probable cause the influence that no other change toward Douglas’ progressive of attitude disclosed marriage. proposed learned of his plaintiff after ever un- plaintiff was most Their conduct thereafter toward contrary any theory defense, advanced but on natural on dislike for her shown expressions of with their was consistent justify an inference would circumstances the evidence. finally bring result plan malice and a deliberate about facts, exist, if found to would so charac- accomplished. These clearly question evidence as to make the terize the other jury. liability of fact for the one respecting length rule at some The defendants discuss evidence, may be from circumstantial that drawn inferences 245, Wales, Vt. citing Wellman, Admr. v. 97 with other cases only applies when 659, 122 That invoked 253, Atl. the rule is suffi evidence entirely upon circumstantial liability rests in such It is said ease. there ciently the Wales indicated together reasonably tend to must taken the circumstances cases from facts offered inference; that the conclusion support the reference probably hypothesis the more at least must be hypotheses. of other at bar possibility case we wholly circumstantial; but, been, was not had it requirements rule answered of the take the view stated above. establish the urged failed to It is [14-16] complained of, of the conduct in that consequences
actionable
not show that the loss of consortium was due
the case does
acts,
does
that it
own
show
was due
her
the defendants’
by Douglas’
Mrs. MacClelland. There
acts induced
conducfwith
question
fully
can
that loss of consortium was
established.
argued
relates to
It is
The real
then
causal connection.
plaintiff’s
choice;
the loss
consortium arose
refusing
she could not
conduct
to continue the marital
supply
missing
argument
relations
element. The
otherwise
ground
sight
motion
on this
loses
plaintiff’s
the basis of
right
recovery, as
well as
evidence that connects the de-
WOODHOUSE WOODHOUSE ET UX.
113
fendants
gist
therewith. The
of the action is the loss
con
sortium of the husband.
Simpson,
Jenness v.
127,
Vt.
Atl. 886. This includes his affection, his conjugal society, his
aid
cooperation
in every conjugal relation.
It is
essen
tial to the maintenance of the action that there
any
should be
loss of
service or
pecuniary loss
Nor
whatever.
action
able
injury dependent
character
separation or the
physical
absence
wrong
husband. The
could be inflicted
though
was living with her husband at the time.
Lavigne
Lavigne,
v.
80 N. H. 559, 119
869;
Atl.
Foot
Card,
v.
58 Conn.
It was held in Beach v. 20 266, Wash. 55 46, Pac. 114, 43 L. R. 72 98, procuring A. A. S. R. a divorce from her husband would not from prevent maintaining wife an against a person prior action for alienation third of his affec- tions.
alienation of affections that
It
is not
necessary
defendants’ conduct be the sole
confer a
right
of action
separation.
It is
cause
alienation or
sufficient if it
controlling
Carle,
565,
Baird v.
157
834;
cause.
Wis.
147 N. W.
Holman,
Hughes
415,
730,
1108;
v.
110
223
31
Ore.
Pac.
A. L. R.
Buckles,
130; McLery
Rush
W. Va.
117 S. E.
v. Mc
Lery,
186 Wis.
When the evidence the cause of the it is clear a jury question considered that it made whether the defendants were answerable for the loss of consortium.
following facts relied upon support that the the claim plaintiff voluntarily separated herself from Douglas, and that the loss of consortium plaintiff arose her own choice. The Douglas Washington had discovered with Mrs. MacClelland. represented He Relying to her that the woman was his cousin. on his representation, his request, at she him returned with Burlington together where lived for a days few at the home parents. of her It arranged was there plaintiff that the go should Douglas to Texas her provided health. funds for' trip accompanied her as far as New promptly York. He v. WOODHOUSE ET UX. WOODHO'ÜSE Washington with Mrs. continued his flirtation
returned to ! May, 1920, plaintiff learned 'what was MaeCIelland. explanation. going Douglas He' and wrote for an went alone, Texas to see not him and he there her. She did see agreed only a As their conference went to time. he short days Burlington Subsequently and she followed few later. during plaintiff get Douglas made that summer efforts to They to her, to return to but was unsuccessful. did live plaintiff gether as husband wife after the learned truth Douglas’ relations with Plaintiff about Mrs. MaeCIelland. testi it was she refused receive in cross-examination that true fied escapade with him because of the Douglas and to live refused regard woman. The seem to the MaeCIelland argue They matter. answer as conclusive the whole continuing Douglas purpose to Texas with the went evident if relations; refused to con marital consortium; would been no loss relations there have tinue such necessary refusing to inference the and that of his relations with her husband because with Mrs. Mac live voluntary consortium Clelland, and so' loss of was due to any and not to act of defendants. act effect lacks conclusive The whole [18, 19] fairly to show that loss of con for it. tended claimed early November, 1919, which was sortium had occurred as Washington. Before events Douglas before went recovery alienation to defeat the defendants relied accomplished fact, Douglas’ affections had become *20 marry MaeCIelland woman. engaged to the he was extent that manifestations in subsequent his that of There was evidence subterfuge. When in the were mere or care for terest MaeCIelland, disarmed company Mrs. he in with discovered returning by His motive in falsehood. suspicions plaintiff’s arrangements her Burlington followed 'for plaintiff to with fact ostensibly health, Texas, is disclosed go consulting an stay plaintiff was during with the he his brief that attorney which were later proceedings divorce reference to jury from which the Clearly was evidence instituted. there of the defendants were the the acts and conduct could find that loss consortium. The controlling plaintiff’s of fact cause conflicting evidence, other causes was there jury ques- it may result, to this made still contributed have WOODHOUSE WOODHOUSE ET UX. may thing be liability partial tion. That there such a alienation of husband’s was affections decided Fratini . Caslini, 66 Vt. Atl. 44 A. S. R. 843
Exceptions to Evidence [20, testimony The took Douglas "Wood- 21] by way deposition. deposition house When was offered in evidence, objected portions the defendants it. to certain group exceptions The first briefed to claimed errors relate admitting parts deposition certain of the when portions of the excluded, being striking context been claim part change out of made a material meaning part remaining. The support record does not claim with refer ence to these items. The defendants did not .attend Douglas’ wedding. Whether he had notified them of the date marriage of his He was issue. had testified that he had family. wired the was then He shown a letter if and asked part an indicated of it refreshed recollection as to whether he had done so or not. question objected The to for an reason, immaterial and the says witness “It answered: so there. I must have wired them.” the court below brought that the answer in the contents of the was sus letter by striking tained out the reference thereto, the rest of answer was part allowed to stand. The excluded did not mate rially part affect the relevant practice per the answer. Our part answer, exclusion of provided meaning mits the changed. left is not part noticed, should in connec Douglas’ questions relating testimony, tion with trial within, court found he was an witness meaning adverse the statute. Douglas had testified in the deposition sometime
in 1919 he had told plaintiff, substance, parents that his had threatened to disinherit He then if him. asked it was it was a fact answered that not. Then ques followed the you lying tion, “Were to her?” to which he replied, “I was.” testimony leading up quoted question and answer objection, excluded on defendants’ insisted that single and answer should stand. The cor court rectly ruled that was so related part objected the defendants that it should not standing be received alone. *21 WOODHOUSE
Clearly question With- preceding was directed to the answer. context, question perverted out the and answer would have a meaning, very rule and its admission have violated would contending the defendants for. say enough to Respecting assigned 21, it is error [23-24] question by objection argued not court raised Assigned way: below. errors 25 Douglas and 26 arose this being examined with the matters that had occa reference disagreements between him and wife and “the Flor sioned “the trip,” hospital,” ida “the conduct the defendants at house, speaking psychologically,” door “their ab closed of their sо-called indifference” wedding,” and “their from the sence He in that connection. had testi referred to specially had been interpretation of those acts had been the occa fied that the disagreement. Then followed cross-examination of their sion showing contrary, which was ex purpose of for the evident single objection (except question and on defendants’ cluded here). question excluded importance The last answer inquiries were directed. which the again the acts enumerated against objection referred admitted succeeding questions ground objec urged as a It was facts.” topics, those “those question and previous striking out result tion But reference.” “a false gave the admitted answer contained contrary 1. “Q. At in the fairly following consecutive deposition: appears time were you questions and resentful whole record. answers were meddling parents? your Never. A. your parents attitude taken Q. you resent the Did 2. marriage ? your toward unjust. thought it was
IA. re- express your manner to Q. you try some Did sentment to them? injustice of it.” I called their attention A. question second answer to the objection the On defendants’ question and answer were third Thereupon, excluded. stood, there was that, record ground on the objected answer was resentment, and that the he had no indication and answer is responsive. The admission reference that the The claim now advanced assigned error 56. *22 v. WOODHOUSE WOODHOUSE ET UX. 117 so that altered the witness say was made to that he called the parents attention his injustice to the “meddling” of their referred to in the first question was not made below. But objection aside, question the second which, left the record with the fact that answer question the to the first anwas em- phatic denial, makes it clear that the reference unchanged. reference to recollect she she deposition admissibility of interpreted your parents’ [26] on the Under money interpreted the assigned ground following question matters all their error 22 the as attitude to her and hostility, didn’t she? it was immaterial: attitudes defendants answer in as hostile.” The challenge to “Q. you A. As Douglas’ Now with the I exception record shows the taken was to the overruling of defendants’ motion to strike out the responsive. answer as not responsive to, The answer was than, question. but broader the This pointed ground was not as the out with suffi it available review. Besides, icent definiteness make raised question materiality below, was not and so cannot be Estate, relied here. See Hurlburt v. Hurlburt’s 63 Vt. 670, 22 850; Pierce, Walsh 12 Atl. Vt. 130. Assigned error 74 relates to a question and answer deposition Slocum, physician of Dr. who attended Douglas when a hospital typhoid' was sick in fever, he with intro- by plaintiff. The duced in witness testified that Douglas’ hospital room occupied he saw father at the Douglas plaintiff; recognize and the that the father did not plaintiff; that afterwards the “I witness, sup- father said I strange way pose you treat Mrs. "Woodhouse, think it but family.” a member of recognize I as Then her fol- do testimony exception “Q. which this He lowed the relates: comparison make a in that conversation her did son? as far his son was A. He me that as told concerned he could * * * everything. As far as his son have was concerned no ex- pense spared, was to be as his was concerned he far wife recognize family.” did not as member The italicized objected part interjection the answer was “an and not proper.” objected It is now claimed that the matter to was responsive. spend immaterial and not We no time with question argued, if merits of error should be found it harmless, having already would be the witness testified thing objection. same without WOODHOUSE numerous Assigned errors relate
[28, 29] it Hill, witness which rulings during examination of unduly prejudiced. the witness and claimed exceptions these is whether the court presented give answer, “yes direct requiring witness erred questions striking out answers or no” to certain regarded as or manner conduct the court evasive. order ing examination of far a matter discretion witnesses so only reviewed for abuse trial court that will be Steel, 582, 584. It' Admr. v. 12 Vt. Hopkinson’s discretion. *23 the record requires reading no the to discover that extended adverse, reluctantly found, that was the court witness injecting by evading a direct answer and repeatedly offended he by question. had the not for the The witness matter called qualify Opportunity right explain or his answers. undoubted denied, contrary fully on the was exer not to do this was claimed, his effectiveness as witness for If, as the de cised. by impaired incident, this it neither the fault fendants plaintiff. nor of court the of the or July, 1919, Witness he caused the Hill had testified garage that some time in June be locked which was in driving prevent her had been kept a car that the By direction was in having access to it. whose this done Douglas’ direction, by that was testified it dispute. The witness by it was direction of claimed that the de the while he not was asked if did tell Woodhouse. Witness L. E. fendant from after that orders came head day or two Douglas car, had told him to lock up his father and that quarters following purpose impeachment For which he denied. Douglas’ deposition was offered evi and answer question “Q. you Hill tell that his And did Mr. orders came dence: I headquarters? A. believe he did.” The admission of “headquar- that word testimony this Woodhouse, L. not refer defendant E. ters” did assigned impeach witness, tendency to as error. is quality point of the statement was not real impeaching fairly objection. The evidence tended to of the show the defendant L. reference was to E. If in- Woodhouse. so question tended, jury, which was a statement headquarters would tend his orders came from to contradict essential, It is witness. claimed defendants, .the ET YT.] WOODHOUSE v. TJX. WOODHOU'SE enough that the two statements be “coextensive.” It is Wigmore Plainly are inconsistent. on Ev. § “orders” up car, referred to were lock instructions to subject-matter understood, that was the of the conversation. So effect inconsistent. the two statements important arising [31, issues fact One 32] acting Hill was introduction of evidence was whether witness things as agent, direction, certain him or done under the of the defendants either of them. Considerable his exam ination was issue, permitted directed to this and was to be con in cross-examination, ducted as he since was found to be Plaintiff endeavoring adverse witness. claimed and was to show although agency, yet the witness denied the proved his acts contrary. Besides, undertaking she was to show the witness’ bias favor of the was a relevant Nu issue. exceptions relied merous one or both relate to of these inquiry. Assigned lines of errors and 92 are of enough say character. is exceptions that none these show If reversible error. inquired some circumstances about remote, is somewhat not reviewable be discretion, cause it was matter abuse of which not under Respecting proof taken to be shown. of agency, direct evidence indispensable frequently is not available —but —indeed agency may shown parties. the acts of Walsh Pierce, *24 130, 12 Vt. 138. Circumstances such as the relation of par the their ties each other and conduct with subject- rеference to the investigation may be matter under relied on. It has been held notwithstanding alleged that, principal agent the the are only deny witnesses called and both the existence of the rela tion, finding agency may justified still the of the upon con sideration the whole evidence and the fair and reasonable may be inferences that drawn therefrom. 21 R. C. L. 820. bearing its Apart from on the issues, the evidence challenged by exceptions was too these colorless to be harmful. [33, Assigned 96, errors 97, and 98 34] a briefed in grow
separate group out testimony the Hill, the effect he times had at aided Douglas to deceive his wife as to whereabouts. The first exception related to answer substantially which the same was as an answer already given objection. exception, without This then, would in not event present reversible error. Herrick v. Town Holland, 83 Vt. WOODHOUSE ET UX. exception presents second a similar Atl. Only question. remaining assignment the of error is for con- being inquired concerning Hill sideration. was the method Burlington by certain contracted which bills of merchants Douglas’ Douglas credit were transmitted to on claiming that circuitous was at Reno. Plaintiff was who then Douglas his answers mail route was forwarded participated, returned, which the defendants bore through- liability. Hill asked if respecting issues the case was receiving was October, 1920, not at the September and he out employed, where he was bills Bank, National Merchants Douglas city. Against objection it from merchants of go through “I immaterial, answered, saw bills witness was materiality apparent of the answer becomes when bank.” admitted is viz.: That theory considered, on which it was sending Douglas these bills to participated defendants concealing Douglas’ purposes for the by a circuitous route which would tend characterize plaintiff, whereabouts liability. any event, the establish upon to relied acts their followed, entirely harmless what wherein rendered answer was thing and more substantially to the same testified witness objection. without
caption, “Evidence Defendants brief received against the defendants group exceptions under involving legally responsible.” The basis were for which acts the evidence does errors is that not connect claimed these question. Assigned acts in 35 raises with the error following admitting the court erred question whether Douglas’ “Q. deposition: your trip answer On question and your way? inwife tears Adirondacks wasn’t most got there, cried a little after I I we don’t remember she A. going tearful we were she was while there.” It was remember nothing there valid connect de “crying fit.” The attendant fendants with circumstances jury question grief make sufficient to whether her found, to the alienation husband’s affections. If due so damages. be material it would The fact disclose did not immediate grief cause of her something then that the defendants said or did is not con *25 trolling. seen, As we have there was evidence connecting the WOODHOUSE ET UX. making alienation, defendants with so them liable for suffering. thereof, including plaintiff’s mental results [36] Assigned errors 99, 100, and 101 of a similar These exceptions during nature. were taken the introduction respecting employed testimony of Hill’s method to transmit Douglas against him referred bills at Reno to above. make upon plaintiff failed to point relied
particular Defendants want of such connection. assert the promised requirement more which not answer the without does showing excepting party. the burden error plaintiff pointed evidence, has out which, But the in therefrom, supplies ference to be drawn the connection.
[37] It wаs in evidence that June before her marriage pregnant by Douglas. became permitted .She was testify, objection that what she did had no rela defendants, she tion to the submitted to criminal opera wedding a short time after the request. tion her husband’s interposed, plaintiff’s counsel When the stated both defendants proposition assented that if counsel to that introduce the evidence, sugges not wish to he did When it was defendants’ tion excluded. counsel announced that they only then, asked have the evidence excluded waived right put part case, of defendants’ the offer was renewed, exception. and the evidence admitted under It was objection. not error to overrule the admissibility depend upon evidence did not having the defendants anything grounds to do with the affair. Several of admissibility could enough say mentioned. It is that the Douglas fact insti gated negative the abortion would tend to claim there anything operation about the to furnish reasonable cause interference. defendants’ It would negative also tend to Douglas’ affections had claim that plaintiff’s cooled reason of pregnancy operation, that his abandonment of the part was in the result thereof. communication with bearing Douglas tiff’s Exhibit evidence on its special at the New Plaintiff was delivery face Douglas during York testifying postage, having envelope address of the defendants. been forwarded to Chatham, addressed marked the summer of attempts “special made to the plaintiff to delivery,” get It bore Plain into Mass., Douglas where then was at the defendants’ summer cot- *26 v. WOODHOUSE ET UX.
tage. through letter was mail plaintiff. The returned the to the envelope testimony in was offered connection with of purpose showing Douglas for the of that was con- cealing from her, pur- himself and was received “for it what place postmark was refused at the ports to show—it —as tending show it came back to her.” The was that was immaterial —could affect exhibit not defendants un- way they marks less connected with it some that the were —and tending envelope on the be evidence show that it would not anyone by quite prob- was refused connected with the case. is It properly evidence, able that exhibit was received but it question. unnecessary Later, that and it before decide ruling the court its ex- jury, been reversed shown urged did cluded the exhibit. It is now that this not error. cure mind the'impression “made of the argued It is that by be the withdrawal exhibit jury” removed would envelope disregard when claims made without instruction afterthought. This would an seem to be was offered evidence. thought that such instruction was desirable If counsel then probably would, requested they should, and have it. must error is not shown. held reversible be group exceptions challenge ad [39, Another 40] concerning Douglas’ missibility evidence flirtation with Mrs. ground acts unconnected on the MaeClelland was taken to the admission exception An the defendants. pages Mrs. MaeClelland’s on several questions and answers by plaintiff. This evidence deposition taken offered Douglas first relations with from their covered evidence met the December, 1919, until she defendants meeting in May 1,' on their return Florida. Washington about nothing they was that knew about what defendants claim the Douglas and Mrs. MaeClelland before place between took responsible it, it was they were not time, that Plaintiff’s claim counsel advanced the against them. evidence tending to knew show the defendants was evidence that there However, the going on. court did not admit testi what ground tended ground, rаther on the that it mony but argue length proposition Defendants show alienation. anything no evidence that knew about the that there was testimony. they But concede incidents covered effect the ruling they say when “the correctness of MaeClelland n WOOD'HOU-SEv. WOODHOUSE may alienation, be incident evidence of but not evidence resulting connec- alienation as to these defendants.” Causal must, tion between the acts of and the alienation tending admissibility course, shown; be dependent to show is not the alienation loss of consortium upon the knowledge defendants’ with the events. of or connection Nor may would established other evidence. The connection rendered inadmissible the fact that questioned evidence be *27 a to show that Mrs. MacClelland possible view it tended part the extent the evidence cause of the alienation. To that defendants, likely is not that the and it would be favorable to assignments The of error they make most of it. failed to the require not 79, 80, character, and 81 are of same do the separate treatment. (cid:127) [41] Assigned error 82 refers to two questions an witness deposition. the first the MacClelland swers the Palm 1920. Sunday, she met the testified that knowledge the without objection to this was that it occurred excep question same the defendants, presents which the the' objection the answer part was to tions last treated. other objection was happened then?” The question, “What to the only part objected of the answer not the sustained, and assignment de Under this error the admitted evidence. testimony the objection to the further argue fendants Doug that learned from then the the witness effect being question us, not before not married. But las was upon by de specification of errors relied to in the referred part If were other is made a record. it which fendants sustained, appear as it does not exception could be wise, the prejudiced. been possibly could have that the defendants Assigned error 84 admission of Mrs. [42, relates 43] testimony meeting plain that some after time MacClelland’s Douglas had and her tiff an interview brother which she alleged apears It divorce discussed.” that the evi “this received, objection dence was that it did affect suggestion plaintiff’s defendants, counsel that knowledge it probability showed the of defendants’ mat notoriety tendency may ter from of it. That such it appear conceded; but it does not that the court admitted the ground, any evidence on that or that it was made the basis of argument contrary. presumption such would be —the WOODHOUSE v.
124 WOODHOUSE ET UX. The defendants cite Williams, Farmer v. 92 132, Vt. Atl. proposition that the probative evidence had no gave since the value, it, ground court admitted falla- argument cious claim and jury. calculated mislead This assumes both that the evidence was immaterial and that it af- alleged forded the basis of argument, fallacious neither of affirmatively appears. The evidence would not be the legitimate argument, basis which would be neces- sary bring it within cited; and, objec- the case sustain an ground tion on immateriality alone, appear it must clearly the evidence is irrelevant. Gomez Hartwell, & Co. v. 147, 155, Vt. link Atl. The. is a circumstance already chain of ques- circumstances held to be material on the Standing tion alone, Douglas’ of alienation. it corroborates testimony respecting what he concerning told the brother prospective divorce, which was objection. admitted without follows evidence cannot be said to probative have no objеction value. The did not affect de- question fendants raises already sufficiently considered. Against that there was nothing to show anything it, the defendants knew about deposition answer in Mrs. MaeClelland’s were received in evi “Q. (the defendants) say Did anything dence: at all to *28 they you disapproved indicate that his (Douglas) to former you? Their status toward A. No.” admission is the basis of assigned was questions error 85. This one of a series of and tenor, answers of same single which with exception were objection. received in evidence without necessarily follows However, error not shown. that harmful related tending there was evidence to a time when to show that the de ’ Douglas know fendants did MaeClelland, relations with Mrs. groundless. objection was point hence the The that silence would evidence be no defendants as were no under legal obligation speak to is made for the first time here, and so is 'not noticed.
[45] Testimony Douglas’ in deposition had been admitted to that while at correspondence the effect Reno he had with Mrs. with MaeClelland reference return rings of some given her, he had and that he had been in sufficiently close touch place with her to know what had taken from time to time proceedings. reference the alienation Inquiries to followed that WOODHOUSE v. WOODHOUSE ET UX. He excluded, given to which witness had evasive answers. was purported then shown what transcript be the of his testi- to mony proceedings, his in matter connected with divorce some Then thereby. stated refreshed and that his recollection was assigned error testimony which the basis of followed the pro- from about a that he heard Mrs. MacClelland effect days there- testimony some week or ten in that referred to posal appear. The was does not proposal after. What knowledge when the incident re- had that the witness was knowledge, his far as was within occurred; that so it ferred to tendency had no to establish hearsay; it was that evidence and entirely immaterial was elapsed; that it the time testi- the effect this discuss incompetent. The defendants referred show the event mony though as had been offered Douglas’ information hearsay. pure it was claiming that to, hearsay; his referred to would be concerning proposal elapsed heard length before he of .time testimony as to open that ob- would not be about it Mrs. MacClelland from irrele- testimony clearly was be said jection. It cannot undertaking show circumstantial vant. MacClelland, Douglas, between Mrs. the true relation bearing the issues the case. upon as defendants respecting others informed events keeping the each was fact that tending support relied as with the affair connected plaintiff’s claim.
ferred by these to as the exceptions is found Assigned “rubber errors stamp matter.” The and 60 relate to what is 58, 59, Douglas’ deposition, testimony covered was, re stamp his father had a rubber time substance, made some Douglas’ early forwarding mail January, 1920, for use York Park father’s home New to the Wardmann during stay Washington. The Hotel, Douglas lived where relevancy appears when circumstance claims of the claiming Douglas parties are recalled. The Washington permanent stay went to when York Florida, left their New home for part that this was plan bring about alienation. The defendants denied Douglas’ going all connection with Washington, particu *29 larly any knowledge that he intended to remain there he when accompanied Washington as them far way on their Florida. fair would a from be inference this evidence that the father v. WOODHOUSE Douglas’ stay Wardmann Park at the least that understood permanent nature. 'The evidence somewhat
Hotel Was a offered, clearly purpose was to admissible was Washington. Douglas’ presence in father connect the with Olga Roosevelt Bayne was cousin of defendant in Washington. L. E. who lived She introduced Woodhouse Washington in Douglas upon to Mrs. MacClelland his arrival Douglas’ stay during their acquainted with relations and was being Defendant Woodhouse was examined L. E. there. he called and had testified that witness Washington daughter Marjory stopped on off in their wife way May, Douglas in there 1920; north from Florida that when they stopping hotel were brought Mrs. MacClelland to the where spent part he afternoon with her; and introduced something her as with trustee. Bayne; Mrs. that he to do “Q. asked, your he was And relations her Thereupon, with friendly, An affirmative were confidential and not?” objection imma was answer was admitted terial, exception reserved defendant was behalf of the Mary Defendants advanced claim in their brief Woodhouse. was used as a basis for the evidence Bayne Douglas’ Mrs. have claim that must known of affair with MacClelland, friendly Mrs. and because of these confidential must have communicated that with L. E. Woodhouse relations taking place all whereby knew that was fact, the defendants anything Washington. is not Our attention called to support the evidence. More record to this claimed misuse of ruling as over, presented we are to review being party, witness the examination court. The to the trial being cross-examination. We are conducted as unable affirmatively circumstances admission find respecting violated the rules such- examination. showing Plaintiff had testified circumstances
[48, 49] her, his estrangement from absence in the Maine for Douglas’ inability whereabouts, search made to discover his est, her him seen November nor she had not after him, that January 5, 1920, 14, 1920, him after until on March heard Washington him the street discovered Mrs. Mac she Against immaterial it was she Clelland. injurious testify permitted effect health then inability Douglas’ absence, him, of her to find and her lack *30 YT.] BT UX. WOODHOUSE clearly admis- knowledge he was where The evidence was. there was question damages. sible on claim that nothing in this absence the ease to connect the defendants already has causal connection been adverted to. Evidence of defend- lacking. jury If that the was not found therefrom controlling estrangement, they would ants of the were cause consequential damages be liable nature. whatever Damages physical suffering mental occasioned probable alienation would be recoverable as the natural and re- during be answer time sult thereof. It would that know question the defendants did not MaeClelland’s Mrs. Douglas’ flirtation with part existence and had no her. Defendant L. E. Woodhouse was being questioned knowledge Douglas’ relations with Mac
respecting his Mrs. meeting Washington her prior to and had denied Clelland knowledge. He then asked the relations was what family following between and Mrs. MaeClelland were Washington simply visit and it was casual ac testified quaintance brought by the in Washington. on event This was question subject- and answer which followed are the assignment “Q. matter of the fourth error: I What want regarded you placed to know is whether woman was who by you wedding your daughter matron of as honor at the as a acquaintance? Exactly.” Following casual A. answer objected immaterial, defendants’ counsel as to the evidence giving reason for the that Mr. Woodhouse did place not The court there. denied a motion then made evidence, assigning strike out the aas reason that the answer objection. record without argued It is in support exception taken this ruling action of the court was an only complaint abuse of discretion. The ques is that the tion contained assumption the erroneous con witness ferred the honor Mrs. undisputed MaeClelland. that Mrs. McClelland served as matron wedding, of honor at the disagreement but there was a selected, to how she came plaintiff undertaking to show that was choice of the defendants. question proper circumstances the cross- examination. The was not calculated to mislead the witness and the responsive. answer was The defendant had ample opportunity modify given his answer if under standingly. fail they to show injured were WOODHO'USE WOODHOUSE ET UX.
by the strike out, refusal to absence of which there would certainly be requiring no abuse of discretion a reversal.
[51, Another group exceptions 52] to evidence relate admitted the defendants acts which it is claimed right do, upon theory acts that the breach duty plaintiff. Assigned toward the 43, 44, errors group of this require attention, do as the record does not *31 assigned Doug any ground disclose was below. struggle las concerning testified what characterized as a had he grievous himself, quandry with in a what and that he was he going was his regarding do marital affairs. In connec this for a hope had did then reconciliation tion stated he hé asked, you his his He was then “Did parents with wife. try get recognize her hopeless it them consider family?” This member and answered the affirmative. objec admitted evidence and answer were over question giving without opinion for the of the witness tion it called theory of anything upon opinion which the was based. The given reason Douglas opin is that if defendants of his undoubtedly would indifference have been the ion, it duty. The indifference breach and that is parents, question for matter did not call is that the answer obvious It direct evi for the witness’ state of mind. was opinion, but Douglas upon conduct defendants’ effect of the dence question ultimate of alienation. upon the which bore tiff to which to circumstantial the defendants’ adverse [53] staying at witness, the evidence interference and the Westfield, Mass., and presently was plaintiff was forced in his undertaking to show prove to be marital noticed relates fact. Douglas affairs. During to resort by Douglas He was at the mainly plain time de he Long Island. admitted that home on He summer fendants’ marital that the affairs, over his but denied in trouble was then contemplated trip A to West- with it. were connected He was September I, 1919, postponed. had been field about anything him and his happening between asked if he recalled postponement answered parents which caused my got into trouble.” that was the sister negative, “unless time written him to the time identified as Letters Then refresh his recollection. came shown witness to were assigned questions error 50 is and answers on which based: WOODHOUSE WOODHOUSE ET UX. “Q. Now, having your read that is letter mind refreshed subject of whether the sister’s interfered and prac- troubles tically your stopped negotiations Hampton there East days? a few yes, upset A. Oh days. me for three two or Q. upset anyone Did it else there in the house? A. It did. Q. only objection Who? A. Mother and requir- father.” The ing special notice was that the assumed “the existence negotiations urged not in the case.” that because of assumption the admission of evidence was harmful error. necessarily This would not follow if negotia- the nature tions did appear. not elsewhere admissibility ques- tion tested the rules of cross-examination. But the jury speculate negotiations not left to toas what the were. ’ nature whole evidence their and the On the defendants connec- fairly appeared. Assigned tion therewith error unsup- 51 is by any objection ported assigned below. This and error 52 cover closely questions quoted. related last They to those merit no attention. further same connection, having testified that as soon
as his father’s frame of mind hoped was restored he had to do something him, Douglas but had not succeeded, asked, you “About this time were you convinced that either find must *32 independent support an yourself means of your and wife separate from her?” to which he replied, question “The up my not come consideration.” point argued not was objection, which was merely the question raised that the was apparent It is immaterial. on the question fact of the an that affirmative answer would have been material. The answer was a denial of effect the fact For called for. either of these the which exception, assigned reasons error 53, must be over ruled. Assigned error questions
[55-57] the admissibility of evidence a statement made L. E. Woodhouse some time in October, 1921, to the effect that he had nothing more to do Douglas, that he had him disinherited on account his escapade with the plaintiff, but hoped that he might he be rein family stated at some future objection time. The taken that the evidence was immaterial is the principal ground of the claimed argued error. It is that disinheritance on account marriage approved right is parents. While that may be so as an abstract proposition, disinheritance for mali WOODHOUSE T99 Douglas’ purpose alienating plaintiff affections for
cions wrong. require argument an would be actionable It should no things charged evidence of admission of one that against at least the one against admissible, was question making importance raised that it. It is of no alienation. Such an admis- statement, made, followed the if after the act because made had been is not inadmissible sion that statement was admissible accomplished. The claim Mary because made after the Woodhouse, against defendant accomplishment of the alienation is not covered admitting when the evidence was offered. made general, the court remarked objection, which was against the Mary made to defendant that could if connection was that any showing absence of to the later. In the be taken care of connection was made or presumed be contrary, will restricted. properly was the evidence admission remaining following question assignment of error answer in group Doug was “Q. you position feel forced to take deposition: Did las’ position I against the A. The same other? favor of one testimony relating always They come at close of had.” Douglas’ when plaintiff presence his mother’s treatment of this connection had testified hospital. at the He sick hospital where he and the the room in came into mother his at his seeing plaintiff there that, upon were, and pla.intiff abruptly left on the her back bedside, she turned feel offended her; that he did not speaking without room annoy impression made an conduct; that it mother’s his him there hos apparent was was that it mind; upon his ance was no and the there his mother tility between —that annoyance directed was them; and that peace betweеn objected followed the Then of them. both urged at most the incompetent. immaterial recognize right her lawful not to the exercise of act mother’s immaterial. Douglas effect on its plaintiff, and respecting applied already been said the test to Enough has *33 circumstances show that the parents in such to to the conduct Douglas important its had effect action mother’s objection follows that the bearing issues the case. It on the was not well taken. exceptions grouped “specimens Numerous
[59, 60] WOODHOUSE WOODHOUSE ET UX. wholly testimony” against immaterial admitted the bare ob- jection that As above, evidence was to immaterial. said an objection sustain such appear it must has that relevancy any to permitted issue in the case. Plaintiff was testify marriage to sometime gave up plans that before she Douglas’ had request. she made to do settlement work at This characterize their show tended to relations to circumstance urged testimony The now mutual affection. marriage long prior a time raises related to to remoteness, which is for to exception consideration. plaintiff’s testimony cancelled a admission of she certain Douglas’ Ethan request invitation dinner at Fort Allen at to presents question. a similar The evidence related to a time engagement Douglas their train- after while an officers’ ing camp. very He the plaintiff had written affectionate letter admonition, good girl, containing Dottie, “Be and don’t Fort me go up.” around the it stirs all The letter playing Douglas’ affection To plaintiff. to show for the was material quoted possible inference from the sentence meet Douglas by going against plaintiff had offended the Fort his wishes, permissible contrary. it was show
[61] Another letter from Douglas produced showing affection purpose plaintiff. for the made refer his congratulations ence extended to both them a person Referring named part letter. letter, what, anything, was asked if occurred with reference engagement the date about Testimony letter. engagement person was announced to the named in the letter against the objection was admitted that it was immaterial unless the defendants about it. knew Several the-objection answers to enough given, could that the evidence was material complete understanding matters contained the letter. Besides, Douglas had testified to thing the same in his deposi tion, objection. came without testified about Douglas’ trip
Florida his parents after recovery from the sickness hospital, leaving at the her alone Long Branch; and that later Douglas while was in Florida Louisville, Kentucky. she went to Testimony she went there to take care of some who cousins suffering from’ pneumonia influenza was admitted general objection that it was However, immaterial. *34 WOODHOUSE
the evidence plainly was admissible. defendants The were claim- ing plaintiff that remained previous behind because of a arrangement a for visit Louisville, plaintiff’s while evidence tendéd to show that 'she excluded trip was Florida Why of the defendants. she the interference went to Louisville issue case. was thus material assigned Defendants treat toL errors 63 and 95 [63-65] gether. relates testimony by former to the admission The Douglas Burlington meeting that he was not at time September, National Bank the directors of the Merchants objection specified; No ex evidence and the ception merely briefing. adequate is not referred to which exception assigned The which is 95 was follow error taken plaintiff interferеnce ing prove circumstances: The undertook to at Woodhouse with her credit F. D. Aber L. E. defendant Douglas’ nethy’s where she had run an account credit. store on During Hill, of witness his attention was plaintiff’s examination meeting the Merchants of the directors of called to the record of whereupon a discussion en September 22,1920, Bank National inquiry. Plaintiff’s made an purpose sued to the counsel and F. D. Aber that L. E. Woodhouse offer show defendant Douglas was not then meeting; nethy present were at follow-, was; not known he Burlington, where and it was her credit meeting was notified that ing plaintiff not could clothing terminated —that she Abernethy’s This of her husband. clothing the credit there on get any more Douglas had with evidence that connection was offered tending not to trust any merchant then notified plain E. defendant L. Woodhouse to show interference tendency having objected no to as living. The offer tiff’s was, ruling of court it. was claimed prove what offer is made on the evidence receive this will “We no exception this time an noted.” At may have E. asked whether L. was then Witness pending. question was meeting of Abernethy present at the F. D. Woodhouse for de 1920, whereupon counsel September directors exception noted desire our said: “We fendants directing exception be noted this.” Without By present.” answer, board was “the full admitted court persons objected witness that both testified were, board of directors and were both members named WOODHOUS'E WOODHOUSE ET UX. present. seem would that it exception was understood that the 'to the offer covered this evidence. testified she was notified about the 24th or
25th of September that her
Abernethy
at the
credit
store was
cut off. Defendants’
tended
to show
such no
*35
was given,
tice
and not
any
that there was
other reason for the
than
by
action
that claimed
plaintiff. Considering
all the
are
circumstances,
say
we
unable
logical
to
there was no
connec
between
objected
tion
the evidence
to
of
termination
plaintiff’s credit, which, so far as
relates
the-pending ques
it
to
tion, must be
unexplained
assumed. The sudden and
termina
of
tion
a credit
recently
which had
strongly
so
been approved
indicated
someone.
interference
The evidence excluded
Douglas,
only
one who
naturally
would
be interested. There
part
on the
ample
defendants,
evidence of
was
motive
of the
especially
L.
defendant
E. Woodhouse. The evidence
merely
opportunity.
argue
of
was
evidence
Counsel
question
ruling
though
depended
the correctness of the
claim
upon the
as
proof
opportunity
ask
Abernethy
of
to
Mr.
cut
to
off
support
was needed
inference that
all that
to
was
credit
E.
However,
the defendant L.
was
Woodhouse.
this
done
indispensable
possibly not an
circumstance
only one, and
that
tending
fact. The
prove the ultimate
forced
to
circumstantial evidence
who
wholly upon
to establish
depend
to
respecting
rule
that interfered
her credit. The
it
Ryder,
evidence is thus stated
v.
admissibility of such
State
652,
“Proving' things by
426, 68 Atl.
654:
circum
80 Vt.
imperfect induction, by
process
which,
ais
of
evidence
stantial
infer
find
the unknown. But circum
known we
facts are
evidentiary
too various to admit of enumera
stantial
changeful
they
as the events out which
tion, for
are
comprehended
They
any rule,
cannot be
within
nor
(cid:127)grow.
brought
Great
under
classification.
latitude is allowed in
everything
reception,
sup
tends to connect
their
evidentiary
factum,
fact with the
posed
probandum, is admissible
’’ Applying
test
prove that fаct.
excepted
this
evidence
to be
to,
should seem
little doubt that it
properly
there
ad
Barney’s
Quaker
See
Admx. v.
Co.,
mitted.
Oats
Vt. 372,
1
3
384,
marriage, and During discussion him alienation. accomplish the of the wealth evidence the admission of objections certain damages, the exemplary question L. E. Woodhouse of alienation at the time his wealth that evidence of court ruled on the circumstances be admissible would Plain- ruling argued separately. Exceptions this liability. objections to reason, show insists, without tiff time some late, as before that line evidence came too introduced defendants had been of both wealth necessary to not find objection. However, we do without seriously contended that evidence that claim. consider admissible, not be if the would circum- wealth of defendants’ plaintiff. Knapp Wing, Vt. claimed are as stances supports proposition that it would then Atl. 334, 47 distinguish attempt to the case The defendants admissible. *36 claiming bring want evidence to it within the doc- of bar at Wing. Knapp principally upon v. The claim relied is trine of Douglas evidence knew the of his was no amount there .and, well, no of of property, evidence threat father’s brought home connecting him. But the evi- disinheritance Douglas lacking. testified know While didn’t not he was dence ample wealth, the circumstances afforded evidence his father’s way general what the was. in a fact It would knew that he if necessary more, show indeed more was admissible on be the case. See note 16 A. R. 840; of L. Ann. this branch note 1915B, 1160. threat of disinheritance Douglas’ Cas. question a knowledge was also on the evidence of it of fact for upon relied jury. The denials were not conclusive of that the of declarations defendant L. matter. The evidence Wood- E. tending with house, in connection circumstances to show that important played part an in pressure bringing financial about a alienation, afford sufficient would basis the for an inference in of disinheritance was threat fact the made. is It right answer the defendants would have a to disinherit Douglas displeased marriage. because were the They WOODHOUSE right a would not have to use of as a the threat disinheritance accomplish wrongful purpose. club a principal objection the to the admission
[68-70] of respecting evidence the wealth of L. E. Woodhouse offered as bearing upon question damages the exemplary of sub in stance this: With Mary evidence wealth' of defendant permissible Woodhouse not be case, would to show that larger worth briefly, L. E. a Woodhouse sum. Stated that, a defendants’ claim was case where there are two or defendants, more of wéalth offered question evidence damages exemplary showing limited is one the wealth of the differences, has certain minor for who practical With least. which unimportant, assignments purposes error are group present Assigned question. this the same error only separate requiring one is clear that treatment. present exception does not reversible error. It is based on proof, addressed to order of discre tionary Besides, the matter. еvidence admitted under ex ception manifestly harmless. lengthy discussion, close court
At somewhat rule under which the announced the evidence the wealth question was admitted exemplary L. E. Woodhouse damages. application As it was limited received its to a against L. E. Woodhouse possible verdict alone. The rule was throughout trial, charge adhered to jury reference to the carefully instructed with matter. The funda-' receiving is whether court erred in question mental greater wealth L. E. only Woodhouse be used exemplary damages assessing in ease the should verdict Objections alone. foundation had him laid then been receiving such evidence went the order proof, later, important, least, not now the evidence made ease question jury exemplary damages. for the on the areWe precise not aware has before arisen in this *37 In jurisdiction. fact our attention is not called any to case in jurisdictions precisely point. other Washington Gaslight Co. Lansdon, 534, v. 172 43 L. 543, U. S. Sup. ed. Ct. 296, is the upon by ease most relied the defendants and is doubtless a leading on the case there decided, viz.: That, the against verdict be for one sum must all the defendants are who a guilty, plaintiff when voluntarily sues parties several as de- WOODHOUSE right any to recover thereby waive he be held to fendants, must ability one against upon the all founded' damages punitive is substance This in pay them. defendants to several the defendants. by the cases cited holding practically all the the not should one defendant wealth of the proposition damages against exemplary other assessing the made basis
be
analogy
relied
to that
no
bears
poorer defendants
apparent
quite
It
is
instant case.
in the
the
extent
go
does
Lansdon
not
Washington Gaslight Co. v.
rule
that the
opinion
for
states
defendants,
the
claimed
damages-
recovery
prevent
punitive
not
does
announced
suggested
joined.
is
several defendants are
in all cases where
may
ease
rule is in such
that what
true
connection
this
Brady,
App.
citing Pardridge
7 Ill.
v.
certain,
not be
DeArmit,
In the former ease it was
Pa. 63.
McCarthy
damages
exemplary
a
for
makes
ease
plaintiff
that,
if
held
against
other,
he
defendants and
against one of two
exemplary
recovery
for
latter and have
as to the
may dismiss
McCarthy
holds that ex
against the other.
case
damages
according
assessed
damages should
acts
be
emplary
that,
any
defendant
defendants,
innocent of the
if
most
damages, none should
such
be included
not liable
‘‘
ease,
if
means
observed,
In such
It is
verdict.
damages
proceed against
party
he should
exemplary
get
way.”
in that
punished
ought to be
Newsam,
frequently
1 Exch.
cited. There
Clark v.
a case
one
speaking of
where
of several
Pollock,
B.,C.
defend
damages, says:
punitive
“It
ants was
liable
difficult
cases which the
par
there
motives of the
say that
defendants)
important,
or more
would be
still I think
(two
ties
unjust
malignant
make
very
motives of one
it would
damages
ground
aggravation
other
party
altogether
free
improper
party who was
motive.
ought
party against
to select
whom
ease
such
’’ n
damages.
aggravated
get
given
Some courts have
means
he
meaning
observations different
than
similar
we attach
cited
them
proposition
the cases are
them, as
standing
financial
of one
defendant
wealth
cannot be
purpose
augmenting
damages against
for the
him,
shown
necessarily
admission of
has
because
effect
augmenting
damages against
improperly
the other de-
*38
ET
v.
UX.
137
WOOD-HOUSE
in
hоlding Walker v. Kellar
in effect is the
fendants. This
Kimberly-Clark
(Tex.
McAllister v.
App.)
792;
218 W.
Civ.
S.
Ostmann, 148 Mo.
v.
Co.,
473,
216;
173 N. W.
169 Wis.
Schafer
Leavell,
App. 24,
v.
114 Mo.
644,
63;
129 W.
Leavell
App.
S.
The these cases damages exemplary question of on the of evidence admission necessarily has the effect indi the defendants against one of against only when verdict has such effect there cated. It ability the most defendants, assessed on the basis of both gen It found that the wealthy pay. will be rule defendant to prevented. evil When is no than the to be erally adopted broader Ostmann, supra, retried, the- defendants one of v. Schafer In during opinion discharged the course of trial. against remaining défendant, sustaining judgment finan proper that it was to take into consideration his was said damages. exemplary Gagen v. assessing cial condition in 152, 930, financial Dawley, 162 155 N. W. the evidence of Wis. generally several defendants was received condition of one of damages. exemplary Subsequently jury exemplary damages recovered were could not be instructed disregard defendant, they directed against that wealth. was held that the admission evidence of was not reversible error. controlling principle tersely comprehensively The is. McEwan, Law, 92, v. 94 N. 109 “The stated J. Atl. 355: Weir only damages jointly rule is that liable joint joint can be recovered tort-feasors verdict.” Smith, that, W. & W. R. Co. v. 57 517, said in Toledo Ill. It is exemplary damages by 'is entitled to reason when defendants, pecuniary ability of the of one of the conduct jury determining considered should not be defendant damáges jointly. to be assessed To the same effect are Chi City Ry. Henry, 62 cago 142; Sugar Mfg. Co. v. Ill. Co. v. Bryant, 54 403, 420, 105 Va. S. E. 320. Batchelder, 558,
Lombard v. 58 Vt. 511, Atl. and Moore Duke, 80 Atl. are said Vt. to .decide the precise point; fact, though they but such is not are somewhat analo gous. only question former ease was exem whether plary damages were recoverable husband and wife in agáinst an action them for the trespass malicious wife, of the v. WOODHOUSE ET UX. WOOD-HOUSE being premises. general husband free from blame Newsam, supra, as stated in Clark v. rule referred to but applied liability because the husband for torts of *39 coverture, wife reason the of as the law then stood. if that, plaintiff proceeds against thereby remark all, the he deprives right himself of the he otherwise would have had to damages evidently question; exemplary was beside the claim convey meaning not intended to the attributed it was to it defendants, as in supported by that event it would not be the the Duke, 401, 194, cited. Nor does Moore v. 84 80 eases Vt. Atl. bringing support defendants’ claim that the of the suit the against joint plaintiff’s rights is the defendants determinative of respecting damages. exemplary That decides no case more than according punitive damages guilt are to be assessed the any defendants; and if of these most innocent of the one the damages, that acting good faith and so not for such liable implies none can awarded in This statement a ver the suit. spe statement The further against all of the defendants. dict against plaintiff “must elect which cially upon that the relied aggravated damages,” to the ease will relates party he seek is for which defendants innocent of the offense one where exemplary Then, course, to secure punishment. they are the against guilty defendant proceed must damages bringing does not follow But it alone. or defendants plaintiff. may He discon against all concludes the of the suit during pro trial against innocent defendant tinue who on the evidence are liable for against the defendants ceed Ostmann, damages. supra; Pardridge v. v. punitive- Schafer why seem no reason Brady, supra. There would to be valid exemplary damages in their if jury may verdict, include only against that are for such the defendants liable rendered is in if their verdict favor of the de is, innocent damages, that- including contrary in nothing cases, our find We fendant. 1, 11, 803, 42 Atl. 43 L. Marr, 71 Vt. R. A. Boutwell v. R. 746. A. S. exceptional parents of the [71] Plaintiff class alienated argues respect spouse actions for alienation exemplary joined as damages because are property upon status relationship each the-social
of'the question of social status there If it were a mere other. purpose argument; primary be some but the would force v. WOOD-HOUSE WOODHOUSE ET UX. of evidence of the financial condition of the defendant on the punitive damages ability is ascertain Ms re spond damages. sucb existing Under individual law the liability joint of husband and wife as tort-feasors is unaffected Batchelder, of Lombard v. the marital doctrine relation. longer Downey, 62 Vt. supra, applicable. Story is no now 321; The same reason exists 246, Atl. G. L. 3526. applied and wife is to other applying the rule to husband case, greater instant wealth to use joint wrongdoers. assessing exemplary husband as a dam basis of defendant separate subject the now ages against both defendants would damages based punitive payment of property the wife to she would have against whom ability pay, the husband to right of contribution. redress or It seems clear that the true rule that, when condition of defendants, financial action several determining the amount one cannot be used as a basis is the other, unless one damages against exemplary *40 of financial condition wealthy all; evidence the least of but that only may admitted be be to used of the individual defendants against against in case the verdict is particular the defendant in difficulty applying to the peculiar no is There him alone. respecting admission of ordinary the rule here the situation single actions where defendant in against a be used evidence to directly point, in While we find no case is liability the severable. analogous logical decisions. is result of think this the we is made the the wealth evidence of [73, claim 74] inad defendants was outside the issue and so of the individual relevancy the is the rule that evidence missible under argued pleadings. governed by made the issues according proceed with the cause bound plaintiff that the words, upon theory joint in of lia pleadings, other to the bility contrary theory to this would ; and to receive evidence departure permit from the the plaintiff be a issue and to take positions. clearly The claim is Mr. inconsistent untenable. Chitty point persons may in law says that where of several be joinder guilty offense, persons of same than of more a in personal were liable in or mixed action form ex delicto con objection, may acquitted of stitutes and one them be no against hand, a verdict taken the others. On the other if several persons jointly tort, general commit has his WOODHOUSE v. ET UX.
140
F99
election
sue all
parties
of some of the
jointly, or one of them
separately, because a tort is in
separate
its
nature
of
act
each
Chitty
individual.
1
on PI. *99. This Court has repeatedly
held that
jointly charged
with a tort can be held
jointly
severally
liable as the evidence warrants when ease
goes
jury.
Robie,
Beaulac v.
92
27, 31,
Vt.
102
88;
Atl.
Wright
Cooper, Tyler (Vt.)
v.
1
425;
Moore,
Moulton v.
56 Vt.
Town
700;
Sharon v.
Realty Cor.,
Anahama
97
336,
Vt.
123
generally
Atl. 192. The rule is
recognized
actions
joint
may
recovery against
tort-feasors
be
there
or either
proved
guilty.
of the defendants
1142;
Note 14 Ann. Cas.
26 R. C.
781. As
L.
torts are
their
several,
plea
nature
guilty, although
two
join
or more defendants
therein, is
Hayden
also
nature
Nott,
several.
v.
[76, exceptions the defendants 77] allege getting prejudicial error in matter before jury through the questions. improper It is a short assignments answer to these inquiries error the were properly in the form of cross- framed, As examination. affirmative answers would adduce evi- WOODHOUiSE quéstions were the clearly relevant. That that would be dence did not had written witness something that prompted call for con- questions did not improper, make for the them denial, were a answers writing. most, For the tents excep- group in this We find error and so were harmless. no Assigned error 159 only requires tions, and one further notice. examination, question plaintiff was asked the on redirect you cross-examination referred to on “What Douglas?” Against the way of reconciliation with stood cross-examination, grow that it did not out of the objection and his answered, parents “ITis subservience atti- to witness testified examina- later.” Plaintiff had in direct and actions tude The de- to effect a reconciliation. attempts part to on tion to show that by her cross-examination undertook fendants Douglas his relations with because of live plaintiff refused to way stood and that that was what Mrs. MaeClelland fact The plaintiff This the had denied. their reconciliation. Hence, attempts reconciliation had failed. that her appeared material, it was within the failure was the reason evidence, strictly if not re- admit of the court to discretion question complaint made that now direct examination. assumed, contrary fact, that the to because it improper goes something cross-examination, on had referred plaintiff ground made and was question, the form of objection below. last group exceptions the evidence com hypo assigned They
prises error relate expert medical question thetical Beecher as an witness. asked Dr. 1920; having plaintiff June, treated He had testified extreme nervousness and mental a condition of he found for her physical could find reason and that he depression; stating assumed, facts the examiner After condition. opinion respecting witness for his the cause of the asked his examination and what he had plaintiff’s condition view of respect Witness answered that the thereto. stress stated feeling worry had been mental were sufficient to suffering. from condition which he found her One occasion the Douglas fact recited in the was that went to the Cana his parents dian home of woods and that did Washing him him not see until she found the streets again ton with another woman four Another months thereafter. *42 ET UX.‘ WOODHOUSE WOODHOUSE learned, upon plaintiff Douglas, while Texas the that
that sending Washington there, had returned and resumed to made that with the same woman. No claim was a flirtation only objection appear evidence, and these facts did not the they up with the the was that were “connected defendants.” for the inquiry account purpose sole
The plaintiff ques- of at time in mental condition the nervous and enter the assessment Whether such condition would into tion. depend upon whether the causal damages would of course of alienation was made to the satisfaction connection with the out the defendants would be liable therefore jury. Whether being guilty that found were depend upon its would natural and suffering was plaintiff’s alienation, and that already as we have evidence, There was probable result thereof. suffi- jury, questions of fact making these seen, the evidence. Other claims ciently answers the not for consideration. below, and so are brief not made Argument Exceptions house what occurred against the defendant. cussing abruptly turned plaintiff Plaintiff’s hospital did not stand Douglas’ bedside episode in which counsel in left the upon argument his room when she opening the defendant testimony continued: argument commenting Mary caught sight “You was dis Wood- have that got that boy who the full force of sick testimony realized then that back significance it, of who got blow, history and unnatural indifference cold snubbing was this courtship and at the time throughout their entire girl his gave gave force and marriage point, that effect wheeling leaving him and to her about and heart mind his plainly him as could be there, and it told his wife was there and because she did it was because his-wife reason excep cared know.” person not a she wife argument prior acts and conduct was to the tion taken being unnatural, claim “that hospital incident cold early case.” abandoned hostility claim the whole issue before Defendants by plaintiff’s connection marriage was withdrawn counsel ET WOODHOXIiSE v. WOODHOXISE XIX. Douglas plain- with the of certain letters admission All marriage. tiff. but two of the letters were written before the *43 These in Douglas’ were offered to for evidence show affection plaintiff the and marriage that the an escapade was not and did not furnish a justifiable for the the de- excuse interference of fendants. following marriage The two -written the were offered purpose showing Douglas’ for additional peace the that by operation plaintiff mind was not disturbed the to which the bearing upon had submitted the of its furnish use to justification legal It the interference the defendants. objected was in that the letters substance were written after the claimed interference making commenced and at a time when the ' open of the statements would to suspicion of collusion. during was preliminary question the consideration this that the claimed withdrawal plaintiff occurred. The herself testified preliminary in the had examination that she with no trouble nor husband, anybody with marital to her reference Douglas relations, hospital episode. the to until had testified and effect, Contrary. the same there was no In the evidence court, the discussion of the matter plaintiff’s before the counsel stated thаt would show “no active interference with ’’ hospital their married life until episode. the In the same con- plaintiff’s nection counsel was asked what was claimed the that wedding replied, fact defendants did not attend the the nothing “I claim issue from The referred this that.” issue to was that raised the admission the letters. effect this answer a disavowal of that claim wedding attend the was an act of the failure to interference or any trouble between the the occasion of went parties, but seen than that. Thus it is that neither plaintiff’s further testimony nor the statements of her claim justify counsel plaintiff estopped argument that the excepted to make the arguing any not to. Counsel was active interference before the affair at hospital, only and was claim- ing more that that incident had effect upon Douglas because previous attitude of the defendants plaintiff. toward the exception The sustained.
ment plaintiff: The following Counsel was speaking incident occurred what closing argu appeared deposition relating Dr. Slocüm’s abortion, which had been developed during the defendants’ cross-examination wit- ET ÜX. WOODHOÜSE [99- WOODHOÜSE Did into substance, put “Who the case? said ness. He they put into the plaintiff? These defendants the brought Nó. case— exception for an this in.” defendants asked the defendants argument. court took the view evidence, though they had made Dr. Slo- did not introduce deposition subject, part cum their witness on This the defense reached. put was not into case until ground had probably on the view was based though objected had deposition evidence, she offered the being cross- part question, it had been excluded defendants’ claim examination. The court thus sustained the jury argument. Thereupon and told the consider the not to presence recalled what occurred plaintiff’s counsel simple recount jury he asked “to when try relating upon” to this matter which now facts trade matter turned the court offered to —how he had leave *44 willing they they so, which declined if were to do out of the case interposed improper that it was do. the to Defendants treaty an argue objections attempt counsel—that to the argument jury. proper matter for to the between counsel was not objection, jury again sustained and instructed the The court the disregard argument in a manner that defendants’ Upon for an expressed plaintiff’s request counsel satisfaction. exception ground argument to the of the stated exclusion exception, replied,' defendants asked for an which court you you If an “You said were satisfied. entitled to have may does exception you present it.” This occurrence have justification some for the position reversible error. There was argument. taken counsel is asserted without con- had argued had counsel tradiction defendants’ at fault for the fact of and was the abortion paraded shame it being so, proper This being case. for in the responsible by con- reply their show that the technically though she appearing evidence, fact duct for the matter it. There could be no doubt that had introduced if error, a manner cure the even by the court in was handled evidently so Defendants’ counsel erroneous. argument fact asked plaintiff’s The counsel regarded it at time. argument, if done of his exception to the exclusion even for hearing jury, disputed question, is a woilld in the of the which question not a of an' ineffectual with- result. It is affect the ET UX. WOODHOUiSE WOODHOUSE wrongful argument, point argued sup- drawal is the рort exception. argue assigned general topic
Under this the defendants error This exception overruling was an taken to the of their mistrial, motion made argument, at the close of the final ground on the of misconduct applaud- of those the audience ing argument. at the dose of court administered sharp ordered rebuke and the court room It is evi- cleared. completely severely dent that the matter was with dealt possible. deprecating as was affair, While the court stated they prepared say were not it prejudicial defendants, and denied the This motion. matter was also relied ground setting as a verdict aside. The only by exception briefed on this reference to the brief on point properly latter can motion. more be considered when motion to set the verdict aside reached. Exceptions 'Charge The defendants made requests charge, and claim error in the refusal all them, but nine of briefing request each separately. During taking exceptions to the charge, the court had before the requests in writing. In excepting, the requests were referred to number, and were followed court were referred to. The claim is made that the exceptions to comply the failure to requests certain of general are under the rule too to be available. The first 25 re quests in varying form are directed to the failure claimed to support allegations of the declaration. taking exceptions, counsel said, referring requests: to these I “What wanted there was this—those are numerous —I don’t *45 necessary them, think it to read except I as to each one the including first down and really to the 25th. Those are put up each one asking different charge -forms the court to propositions certain by out as supported not the evidence. Also an exception non-compliance to the with 26th, 27th, 28th, the 29th, 30th, 31st, 32nd, 33rd, according 34th.” At this point, to record, gave supplemental charge the court the aon matter that had previously been attention, called to its after which the exceptor “Resuming my continued: exception charge— to the going my the exception back to should be ‘and so far as 25th— 10 ET TJX. v. WOODHOUSE WOODHOüSE
146 subject’; 26th, charge on that the attempted to the court 33rd, 34th, 35th—if there was 30th, 31st, 32nd, 29th, 27th, 28th, of the court charge subject except to the failure any on the —I charge subject the re- charge and to the on on those Thereafter, exceptor re- charge was.” quest, whatever excepting by number, either singly requests ferred to specified request according and to the charge failure charge requested as the failure to thereon, or to charge given if whatever charge subject, there was and to excep- or the other these forms substantially one was. 40th, remaining requests except all taken to tions were 47th. 41st, 43rd, and argument in the cir-
It
to show that
requires
extended
general
require
exceptions
too
attention
these
are
cumstances
profession
entirely
with which the
familiar.
under-rules
being
exceptions
should be observed that the
were
taken at
legal
lengthy
complicated
trial, replete
with
close
nice
requests
exceedingly
numerous and framed
questions.
proposition
afforded.
every
the case
conceivable
cover
required
pains
that even
be taken
to the court
unusual
Justice
requests
point
relied
which it was
out matters
adequately
charge, and
had not been
covered
claimed
charge
given
as
was claimed to
to indicate wherein
be erro-
The rule
the reasons therefor are
well known to
neous.
too
require
than a
to some
recent cases.
reference
Wilder
more
Hinckley
Co.,
45,
428;
122
v.
Fibre
97 Vt.
Atl.
Eastern States
Vail,
Vt.
Agricultural
League
v. Estate
97
Industrial
475, 490,
495, 514,
568;
Benjamin,
124 Atl.
v.
96
McAllister
Vt.
Conant,
267,
263;
257,
121 Atl.
Platt
96
v. Shields &
Vt.
Gould,
520; Morgan
275,
517;
v.
96 Vt.
119
Atl.
Atl.
Bradley
Duprat
Chesmore,
Atl.
v.
305;
Vt.
Blandin,
However,
94 Vt.
that she now all and damages.” recover once for for all ‘‘ assigned exception reason for the was that it overlooks the fact that she was then and is drawing now alimony from her part husband.” charge of the exception to which this damages related directed for loss of consortium, particu larly the part concerning damages prospective such jury loss. The were told recovery the event of a was not damages limited to for loss of consortium up to the time trial, but would be damages entitled to also for such future loss consortium as found she would sustain. It is not claimed that charge given incorrect. argued It is loss of support was one the elements for recovered; loss mitigated would be the fact that she was receiving alimony from her husband; and jury were nowhere charge instructed in the lia bility support might loss mitigated. so If it should be admitted that on a proper showing the dam- n WOODH’OUSE *47 ET TJX. v. WOODHOTJSE to the extent that ages ought to be reduced support for of loss be might by law husband had contributed plaintiff’s the follows by no means support, her compelled to contribute to exception It was exception error shown the taken. that being challenged charge not as part a which is to definite the charge as inappropriate exception It as an the unsound. to damages a for the now com- whole on the omission pre- plained appear of. It does not that the defendant had viously during claim made trial reduction dam- the sufficiently ages alimony. exception not on account of The alimony receipt that specific court of a claim the apprise to appears damages, as considered reduction of should be For findings motion the verdict aside. court’s on the to set exception be overruled. these reasons the must taking a further exception to charge, counsel jury if the believed charge was that “The court’s said: that controlling cause would were of the defendants acts recovery that not be a does discriminate as entitle defendants had malicious acts and those which the a tween the permissive acts where malice illegal not acts right do, charge' de think on the holds overturns, we whole they legal right for acts which responsible fendants charge they part if ill do were will.” The of the done whether the the defend referred to related to issue acts of alienation. It was them, claimed caused ants, or either of due her own fault. consortium was plaintiff’s loss of cor appropriate to this issue and language employed was The situation. It is rectly applicable law the rule stated charge did particular part of the not a valid those malicious acts and which not discriminate between objection, only force to the right do. The had a defendants charge a whole made any, proposition if is in the legal right they had a which responsible for acts defendants very charge. the whole just criticism of is not a This do. far as rights parents, so peculiar pointed out carefully child, laid down the their marital relations of concerns child’s affec liability alienation of the principles governing already announced compliance with the rules tions in substantial possibly jury not have understood opinion. could in this The liberty they were to find argued as now controlling was the cause if their conduct WOODHOUSE ET UX. although alienation, respects that conduct was in all lawful and legal duty plaintiff. This constituted breach toward contrary charge. spirit would be the whole and tenor of the precise point exception that the defendants would though for acts legal right liable which had a to do argument ill was not taken. Defendants’ done with will well maliciously regard based contradiction. Acts to alienate their son’s affections from the intended duty lawful such as could not be acts a breach toward distinguishes This upon, the son’s wife. the cases relied legal right only, hold that when one exercises the motive which ques- him is immaterial. controverted issues on the actuates seen, liability were, have whether alienation tion we *48 through interference the defendants, came about the active of them, prompted by plaintiff. either of malice toward the The important intent wdth which the defendants acted was the con- gave and sideration, character their acts. It follows that the charge not in respect erroneous excep- the indicated in the tion.
fendants) may have used influence The exception “to the suggestion without physical they (the presence” de applicable not as the evidence the ease does not merit more passing than “suggestion” notice. The was made in connec charge part just tion with the of the referred to as follows: presence defendants, “The actual the of or either of them, dur ing process the alienation is necessary the to be shown. I enough, said, as have or either of them controlling producing it and cause may influence have been рresence.” exerted without their That this is a correct rule of is not law nor questioned; could well be. Townsend Townsend, 84 Vt. 320, 79 Atl. 388. The merely it was the statement of an abstract principle law, nothing. tenable, if avails Unlike the cited, cases it introduced the and at no issue outside evidence most would be harmless error. exception The “to the statement of the court that case wrongful
contains circumstances acts could be in- ferred, applicable presents to this case” a question al- ready considered connection with the motion for a directed verdict. n v. WOOBHOUSE Aside Yerdict to Set
Motion returned, assessed They plaintiff. for the a verdict jury ex- $65,000 allowed $400,000 and damages at compensatory verdict to set the moved damages. The emplary verdict was (1) that grounds general assigning aside, unsupported by evi- evidence,, and against the excessive, them the given law misconceived jury (2) dence; law as follow refused to failed, and neglected, and court damages upon the base jury failed to (3) given; mitigation evidence failed consider and upon, and governed by, based verdict damages; (4) that the specifies motion prejudice. and by bias, passion, influenced many very grounds, general under these particularity, Among these were set should be aside. why reasons the verdict legiti- limits counsel plaintiff’s transcended claims that prejudices appealed passions argument and mate charge adequately to failed caution the jury; that the argument of counsel plaintiff’s jury against the influence of incep- prejudice; that from the passion excite calculated to community intensely suit, partisan favor tion of the nearly times, court all and crowded the room jury, room, both of which out of court reason subjected hostility atmosphere to an the defendants were sympathy plaintiff; jury their cause and that the improperly defendants, influenced the wealth especially Woodhouse; defendant E. that popular L. plaintiff’s approval attorney of the sentiments emphatic- was. *49 ally expressed in jury the audience to the the presence of court, applause particularly the outburst of at the close argument. of final
The in finding court their found of facts, part of made bias, that was passion, the record there no or prejudice which verdict, the therein, entered into and state that, reaching conclusion, they had this considered all of the circumstances and trial, including the the incidents of .amount the of verdict and upon questions jury asked the the their return for instruc- disposed phase The court of this tions. of the motion by saying: ‘‘ far, proceeds then, this motion upon ground So the that- the passion is prejudice, the result of and is verdict it denied.” Pass- against question whether the verdict was ing evidence, the UX. ET WOODBOUSE the contrary to evidence, and was any supporting or without upon was the court there evidence court, of the held instructions verdict, plaintiff’s reaching a jury justified which the finding so far as motion attacks the ruled that the and therefore sustained. liability, it was not toas damages finding as to question whether the Taking up the rules court stated the foregoing objections, the the open was questions, including that, the rule order governing such appear must that motion, granting justify damages grossly proportion out of award of that there is reasonable basis injuries sustained, of the damages. jury subject upon finding therein for damages question was viewed somewhat The evidence on with defendants’ claims with in detail connection reference reached verdict, The both thereto. conclusion exemplary damages, was The compensatory excessive. finding clearly follows: language of the “We see the sum grossly jury might $465,000 excess what reason- ably case. we stated, award this As we do find this ver- prejudice, any improper bias passion, is the result dict mistakenly jury we consider have But do motive. greater than that is much which is war- allowed a sum which subject.” by the evidence ranted insisted that the verdict should set aside be remittitur should not be ordered. granted trial and a new —that $100,000 However, compensatory the court found that the sum of damages excessive, and not was reasonable the minimum proper jury, sum which the under view of the evidence and expected reasonably be law, allow; could and that in re- gard $25,000 punitive damages, was such plain- sum. The given tiff a limited within time which to remit the excess verdict, named, over and above the sums whereupon the aside was motion to set verdict to be overruled. The alterna- tive order was verdict should set and a new aside damages only. on the granted trial The defendants ground generally, excepted on were entitled granted^ aside and a new have verdict set trial specially grounds claimed all error, 29 distinct of which, one, save argued in their separately brief. exercised remittitur, whereupon filing option judgment $125,000 both defendants damages entered to which *50 WOODHOUSE generally specially, severally excepted, both and the defendants and ground permit was error to the remittitur on the that it sustain the verdict as reduced. whether the [86] disposal really vital of the motion resulted question raised these the court’s exceptions legal was in the discretion invoked or con-
failure to exercise claims are an abuse discretion. substance the templation neglected court certain these: That to consider circum- bearing question on the of whether the verdict stances was passion prejudice; and the circumstances in result conclusively appeared fact considered the' verdict was aside; being thus tainted and should be set and it found that grossly excessive, of the amount verdict there determining to which basis sums it was ordered proper damages setting be reduced avoid should aside the verdict. questions argued, Some incidental substantial grounds complaint are embraced within these As claims. questions exceptions findings rulings arise on of the below, scope inquiry court limited review indulge legal errors, and we are every claimed bound to reason- presumption support able the action trial court. By several exceptions to the findings, the defendants consider, among the court failed to things, assert other argument objectionable plaintiff’s counsel character, though excepted to, not its nature was calculated to sympathy jury arouse the and to excite passions their prejudices. claimed upon omission is based the reference findings in the argument to the fact that some of the not objected to, coupled with the that, statement far so as their objections sustained, were not the defendants protected by exceptions, that, regard their portions to such as were objection came objected to, too late. It is doubtless the exception of an prejudicial the absence argument rule that raising of the issue of its prevents impropriety aas matter However, deprive does argument law. of evi dentiary upon the issues value raised the motion to set the Langley, verdict aside. Moulton v. N. Y. Atl. duty It was of the court to probable consider effect of inflammatory argument, if such together there was, with all the of the trial tending other circumstances to account for the size verdict, particularly (cid:127)of the such as bore *51 YT.] ET TJX. W00DH0TJSE WOODHOUSE 153 v. any improper motive the assessment of dam- whether affected ages. and position respecting this, with defendants’ trouble claims, complained similar is that failure not affirma- the of does tively appear. findings, certain statements in the might like While above, imply infer, that referred to what the defendants direct respecting statement that the conclusion reached the passion prejudice was, upon consideration, “of absence of the trial,” all circumstances and incidents of leaves no room upon. appears fairly for the inference relied It find- ings that all of defendants’ claims motion on the to set the ver- given consideration; hence, dict aside were it we do not find necessary exceptions to examine the relating in detail regard. claim that the erred court [88, exceptions Other are directed proposition 89] to the that the court in holding erred the verdict was not the result bias, passion, prejudice. recognize The defendants the motion to legal set verdict aside was addressed to the trial discretion court its only and that action is review able failure to exercise such discretion, or for what amounts in law to abuse Sharby of discretion. v. Town 98 Fletcher, 273, 300; Platt, Vt. 127 Atl. Admx. v. & Conant, Shields Vt. 96 257, 270, 119 Dyer 520; Lalor, Atl. 103, v. 114, Vt. 30. 109 Atl. exceptions being These to a finding addressed by fact the court below, presented might regard is not how we evidence; fact to be on a of the justify review this Court sustaining exceptions, appear it must us, from the record, that is no finding. there reasonable basis therein for the Platt, Conant, Admx. supra, v. Shields & p. Besides, it should trial not be overlooked that the court position is better question, determine the so that its determination should or dinarily accepted. Valley, etc., be See Gila R. Hall, R. Co. v. 94, 232 U. 58 L. ed. Sup. S. Ct. 229. Defendants advance the claim that passion preju conclusively
dice are shown size verdict alone. But this is necessarily are not convinced that we so. There have been eases where the verdict was grossly so proportion out of injury that, looking to all circumstances, it could than be accounted for otherwise as the result of passion It prejudice. has been said that an. excessively large verdict, absence of may other explanation, prima treated as jury was not unprejudiced, fair, facie WOODHOUSE 550, 116 Co., 135 Wis. Bird, etc., Lumber Beach impartial. passing that, all show the decisions N. W. 245. But circumstances all the into account take must question, the court wrongdoing. It well is presumption is no case. There damages when awarding err in frequently juries known influenced claiming ground is no there damages is so where often, this More motives. improper basis for definite jury, estimated to be are left that, frequently observed evidence. computation damages, required to estimate juries are where vary from the estimate verdict should at that their be wondered *52 fact that court Hence, the including court. the others, the of large a reduction their jury, made with the but "agree not did contend, unmistakable be as the not, award, would Especially would this be prejudice. passion and evidence of minimum upon fix the amount was called court so when the allow. jury reasonably expected be damages the could which of discloses think it cannot said that the record We [91-94] finding was not basis for the that the verdict the no reasonable prejudice. true, pointed as passion and is out the result of thirty-nine verdict exceeds the total of defendants, that the ver during twenty- past dicts rendered in actions of this nature the fact, This years five that have been attacked for excessiveness. said, worthy consideration; of as below well is serious the court upon it is Each case stand its but not conclusive. must own bearing in this facts, case, and the of clearly damages, places it a itself. Plaintiff class prime life, and, alienation, husband of for were every was reasonable prospect many years there of marital of possessed happiness. independent Her husband anof for the alienation, at the amounting, least, $75,000. tune time of at n graduate He a man a culture, of of School, Columbia Law years’ experience had had in banking. and pal several princi damage, jury item the required of which the were to esti mate, how much would make the whole permanent loss of consortium in such It is not circumstances. unlikely they at arrived the sum compensatory awarded for damages by capitalizing they regarded what as the annual loss at some low rate of adding interest and thereto sums as they damage. allowed for other of elements probable This seems from the plaintiff’s fact that argued counsel along line. WOOuHOUSE exemplary- $65,000 award of that the be said Besides, it cannot of the result except as accounted damages, not be could the evidence use of or the unwarranted prejudice, passion admitting allowance In a case wealth. E. Woodhouse’s of L. largely allowance of such damages, the amount exemplary of determining what would be In jury. discretionary with the the character into account be taken must there just punishment, Joy, 61 Admr. (Goldsmith’s v. standing the defendants malice 923), the A. 15 A. S. R. 500, 4 R. Atl. L. Vt. guilty (Board found of the act for or wantonness standing financial 403), well Vt. as Goldsmith, man exemplary fact that wealthy Hence, defendant. least individual wealth allowed, of the damages in excess controlling. disposing phase this Mary Woodhouse, is duty trial court to consider motion, it would be As plaintiff. most favorable of the evidence view conclusion reached a reasonable basis for the discloses record by finding disregard liberty their court, are not trial we prejudice. or bias, passion, result of verdict was that the phase motion, this court ob- In the discussion of bias, passion, the result that, if verdict was served trial, entitled the defendants would be new prejudice, the defendants right, adding, “the burden matter The defendants brief an that it was so influenced.” to show quoted part ques- the statement. exception taken to importance practical is of the circumstances tion *53 any presumption finding upon is not The based or the case. upon evidence, consideration all the circumstances lack of of incidents of the trial. The court considered each circum- influencing upon improperly the jury, stance relied such as damnum, argument ad counsel, the amount of the of the the sympathy part on manifestations of the of the spectators, the applause at the of final argument, outburst of close the stated, effect, they in found no reason to believe the jury thereby, by any were influenced except motive con- upon decide the ease scientious desire to the evidence. When considering the effect of the applause by the
spectators, governing stated the rule of law the court such a that a spectatоrs situation to be demonstration in a court granting room is not sufficient reason for trial, new unless it appears rights parties prejudiced that the of the thereby. WOODHOUSE exception statement, an taken to the argue
The claim- seem applicable ing that to case. It would the rule is de- argument support proposition require to that the complain not be heard of such misconduct fendants could thereby. upon sup- cases relied unless were harmed The port exception misconduct of jurors, of the relate where upon was set grounds it held that the verdict be aside should findings Defendants’ public policy. only no- applause inadequate, passing merits respect to the was appear that the court asked tice. It does not to make findings give and, besides, the made seem findings, additional an picture of that incident. accurate question
[96, come whether the court erred We 97] overruling motion to set upon the verdict aside condition should be part remit thereof found to question rely excessive. On this the defendants are forced to anwas upon the claim that the court’s action discretion. abuse of profitably outset, We can most consider at the what prac our way of permits by tice reduction excessive verdicts recently phase question cases this character. One has Martin, been before Smith v. Atl. the Court Vt. 666. That an action of tort for deceit sale of certain capital shares of stock of corporation. The defendant brought up exception deny an to the action the trial court in ing his set ground motion to the verdict aside that the' damages were question excessive. The considered was whether proper motion was a judicial refusal of the exercise disr The cretion. conclusion reached from examination of bearing damages mani that a injustice if result, fest would verdict was allowed stand. damages rule the case was the difference between the actual value of the stock and its as represented. value $4,398.90 verdict was for damages, appeared while by mathe calculation, matical based on the evidence most favorable to the plaintiff, that difference in value did $1,400.00. exceed Speaking power of the grant trial court to a remittitur circumstances, in such it was said thing that the guarded to be danger injustice was the forcing defendant upon- him an judgment, excessive when the excess in the verdict accurately could not be pointed determined. It out that that danger by fixing could avoided the amount, on *54 acceptance 157 WOOD-HOUSE denied, be at the plaintiff, new trial would which, reasonably expected to jury could be minimum sum which clearly which the court see was not excessive. allow, could damages, In the case law the measure Smith fixed ascertaining the evidence afforded the means of the excess degree accuracy, plainly with a it is the verdict reasonable opinion grant in the power intimated that the a remittitur is possible where it is to determine what confined to cases certainty, by computation. should have been with verdict In those cases where there is legal measure unliquidated damages, are so the amount thereof is judgment legal jury, discretion of the referred ordinarily verdict, court will interfere with their unless it clearly damages appears that the found excessive insuffi or Although may considerably cient. the verdict more or less than, judgment ought court, been, of the to have still great it will to interfere unless the amount sо small decline or perverted judgment, that it is the result as to acci indicate dent, gross When the is thus or mistake. verdict excessive or will not deficient, court hesitate to exercise its discretion 2 to interfere. Sutherland on said Dam. 459. It has been § that courts have been reluctant even excessive ver reduce dicts alienation of affections lack because of the .actions proper rational basis fix amount. Phillips Thomas, 70 97, Wash. 127 Pac. A. L. R. (N. S.) 582, 1914B, also, Ann. Cas. See, note L. A. R. 1915F, 30, 34. may trial
The view court not allow remittiturs computation there is no basis of obtains in jurisdic- where some England contrary It is modern doctrine tions. where the decision in prevailed Watt, view before the Watt v. C.A. 672; Ann. and is still jurisdic- Cas. adhered to some country, including in this Colorado, tions Georgia, Kentucky; Dakota, Virginia. and West tendency South But the of the late decisions of courts the other states is in the direction unqualified support practice which allows both the appellate courts, trial and cases where is entitled damages damages to substantial and excessive awarded, have been to indicate the give excess and option him the take remit and judgment for the residue submit trial, regardless to new capable whether the excess is computation or not. prac- This *55 TJX. ET WOODHOTJSE WOODHOTJSE v. 158 weight au of decided by the supported found be will be tice 1067; 20 (N. S.) 39 R. A. note L. see eases thority. the For Among 675; the J. 1139. 317; 4 C. 2 Ann. Cas. note L. R. C. Her Co. v. Pac. R. R. Northern subject are the leading cases Arkansas 590, and 755, Sup. 6 Ct. 29 642, L. ed. bert, 116 U. S. 854, 32 L. ed. Mann, 69, 130 U. S. Valley Cattle Co. Land & which was an action case, In former the Sup. 9 Ct. trial a new $25,000, and was for the injuries, verdict personal $15,000 remit of plaintiff should the unless had been ordered entered judgment was filed, and remittitur was The verdict. the sustaining action Court said: the In for the remainder. refusing trial, a new that a condition of exaction, as “The by the amount awarded portion remit a should the court. matter within discretion verdict, awas error but that excessive, was amount found held that the remission requiring the trial. had been committed on require nothing more excessive, it did than was what deemed opinion, damages as, in its much relinquishment of so could, corrected verdict jury improperly awarded. The properly allowed to stand.” therefore, be length case, Mann re-examined at trover, in which the trial court had overruled a an action of accepted condition, plain motion trial for a new large a tiff, nearly that verdict should be remitted. two-thirds of (cid:127) TIarlan opinion Mr. Justice delivered unanimous ‘‘ reviewing The practice Court. After the cases he said: which in Northern Co. approved this court Pac. R. R. v. Herbert [116 Sup. 590], ed. 755, U. S. 29 L. Ct. is sustained sound not, any just sense, impair reason and does the constitutional right by jury. disputed It cannot trial be the court is authority within limits of its when it sets the verdict aside jury grants damages pal of the a new trial where the are outrageously pably But, excessive. in con cited.] [Cases sidering a granted upon whether new should ground, trial be necessarily determines, the court its mind, own whether given verdict for a amount would be liable to the that it authority excessive. of the court determine whether damages implies authority are excessive when determine are not of indicate, passing character. To. before upon trial, motion for a new opinion damages its that the excessive, require and to to submit to trial, unless, by a new re- ET ÜX. v. WOODHOUSE cer objection, removes verdict, he part mitting give him any right, or defendant deprive the tainly does en the verdict should Whether complaint.” any cause excessive, or should it was ground upon the aside tirely set relieve it such amount being reduced would after stand questions held to be excessive, were being imputation reviewed not be could of the court the discretion within the reduction whose favor party instance of Valley, re-affirmed Gila these eases The doctrine made. 521, 34 Ct. Sup. L. ed. Hall, S. 232 U. R. Co. v. etc., R. *56 as unnecessary, is decisions review the An extended 229. already re by the fully is covered cases subject law the the to. ferred having verdict found the The trial court
[99, 100]
interference,
its
it was
require
to
excessive as
was so
prejudice,
proper
was a
case
passion or
the result of-
not
action
remittitur. Whether its
of the verdict
correction
the
question
to
whether
upheld
leads
the further
be
on review
should
damages were
excessive
to
the
remitted were still
the sums
exactly,
justify
as
inter
were so excessive
or, stated more
as
involves,
seen,
ques
This
we
of this Court.
have
ference
actions,
discretion.
what would be
tion of abuse
damages
necessarily
is
judgment
matter of
be
reasonable
from all the facts and circumstances in
Capi
estimated
the case.
Garage
Powell,
Company
303,
tal
v.
98
127
Vt.
Atl. 375.
rule
as to what amount should be remitted to avoid retrial because of
in
an excessive verdict
cases where there is no definite measure
fixing
variously
damages,
or standard
amount
has been
stated:
“The
of the action
basis
of the
in this
court,
respect,
place
figure as,
will be to
the sum such a
every
in
reasonable
probability, any
jury, rightly
future
law
instructed as to the
and, with
proper conception
duty,
be
would
liable
award.”
Co.,
Willette v. Rhinelander P.
145 Wis.
130
537,
N. W. 853. “The amount remitted shall
large enough
be
strip
prejudicial
verdict of
elements, giving the defend
ant the
probabilities
benefit of reasonable
in respect
amount
recovery,
of the
regarded
so that it shall clearly be
exces
Louis, etc.,
sive.” St.
Brown,
R. R. Co. v.
[101, Court, Should of its re exercise 102] visory powei', trial disposing the action of the reverse court Admittedly motion to not, set the verdict aside? unless recog abuse of discretion is shown record. this, As nized test whether the discretion has been exer court grounds clearly cised reasons or for untenable, or to extent clearly Dyer Lalor, unreasonable. Vt. 109 Atl. England 30; Tibbetts, New Box Co. v. 285, 290, Vt. 110 Atl. 434. The ultimate being whether the sums fixed damages court to which the been have reduced were them excessive, applies rule selves that this Court will interfere *57 only when the award the lower is manifestly grossly of court Platt, Conant, Admr. v. excessive. Shields & 96 257, 270, Vt. 119 principle 520. This has applied question Atl. been where the in like that the case bar. It is in said Pensacola Sanitarium v. Wilkins, 447, 68 124, that, Fla. 67 So. where a remittitur has been alloAved, judgment a will not be reversed not for excessiveness Co., in clearly apparent; again, Brewing Detzur B. Stroh 119 v. 948, always 282, 500, 77 N. W. 44 L. A. has been Mich. R. that it grant by portion a of a of matter discretion the relief agked portion a of a condition requiring remission of the as a verdict upon denied; trial will not that, which new where is action trial clearly erroneous, the court will not be dis turbed.
[103] We
note,
in
passing,
certain claims
respecting
damages.
exemplary
exception
An
taken
allowance
permitting
order of the
stand
court
verdict to
v.
ET TJX.
WOODHOTJSE
WOODHOTJSE
$25,000
amount of
on
punitive damages,
ground
account of
on
is
in
puni
that there
no basis
law
in
for the
fact
award of
damages in
exception presents
tive
this
This
question
case.
a
motion,
proceeds upon
theory
which
not raised
punitive damages
jury w,as
amount
awarded
exces
object
exemplary
sive,
and does not
the allowance of
length
The
damages
argue
unwarranted.
at some
principle”
“punitive
state the
is not
this
involved
damages.
exemplary
assessment of
relied
eases
proposition only
of this
hold
support
exemplary damages
given in lieu
punishment,
payment
are not
and so the
damages in a civil action founded on a criminal act would not
proceeding
bar
criminal
for the same
Hoadley
act.
v. Walton,
289,
45 Vt.
Petition eor a New Trial ground petition for a new trial is the misconduct jurymen in talking certain during about the case the trial jurors. alleged ground of their oath as the chief violation *58 the ease complaint partly after heard and before of that testimony adduced, Burr Martin defense had been D. ll ET UX.' WOODHOUSE expressed an jury, as foreman of the Milton, who served this, he to trial, of the that stated
opinion to the outcome as wife, A. his presence Irving S. Coburn and Lottie and in residing Milton, opinion plain- that the Coburn, both then at large ought prevail ought and a amount tiff to recover prevail recover. and would so she would so damages, and that complaint ground early additional that alleged as It is an Westford, juryman, another ex- Paige of the trial B. Clark Milton, opinion Brunell, that Joseph A. then of pressed to get money, is, her that would recover dam- plaintiff “would and she had herself on ages that conducted of the defendants lady.” charged juryman is further that the stand like a length him Paige talk with about the case at suffered Brunell to plaintiff express opinion and him the that would re- may petition that new trial be prayer of cover. pending exceptions, determination granted if, jury pre- for the it shall determined that either the defendants. the trial sented on appended petition affidavits Among supporting substance, Mr. Mrs. Coburn and Brunell. are the affidavits of during affirms that the trial of the Woodhouse case the former three weeks before the end of the on an occasion some two or her Martin called at house and visited with juryman trial, the Coburn, deceased; on that husband, Dr. since that her'and her opinion “expressed confidence occasion Martin large verdict in said ought and would recover words, exact she could not state his “but that was cause,” —that opinion expectation.” what he said as substance Burlington in his that he was in affidavit on an states Brunell during Woodhouse trial and some of evi- occasion heard night Paige; juryman to Westford ; he rode dence that considerably the ease intervals Paige about talked he Paige say very much; way did not home; that most of guess get money, saying, “I she will remembered affiant Paige replied, guess so”; “I affiant To which she?” won’t thought appeared the stand he Paige how asked lady.” “Like Pursuant order replied, the latter by way testimony petition of de- support of the court, deposi- a commissioner in the form fense taken before transcript proceedings of the before the commis- tions. filed in by agreement parties, been has, sioner lieu *59 v. ET UX. 163 WOODHOUSE depositions, they stipulate shall formal be treated compliance with order.
[105] A controversy arose before the commissioner respect ing to petition. the use of the annexed be made affidavits to the being Brunell was examined as a witness the defendants. being testified during He had to court on an occasion the trial riding juryman Paige to Westford with adjourn to after day, Paige and that had conversation with ment way he affairs, particularly court what happened about about day. Continuing following the direct examination occurred:
“Q. Well, now tell us about that conversation: Why, going get A. I him if money. asked she was her he didn’t Said know.
Q. you thought Did he tell what it, anything he about of that? I
A. Not that remember of. Q. anything Said he know. Was didn’t else said it? about I appeared A. asked him how stage, says she on the he lady. like a
Q. Well, money. about Did say anything he than else didn’t that he know? I
A. Not that recollect.” Thereupon the examiner showed the witness an affidavit petition, having proved nexed to the signature thereto portions called attention certain of the renewed affidavit Paige inquiry as what said thought when asked if he get money. would her The witness then “I answered: ‘ ” him get asked if she money would said, and he guess I ’.so procedure This objected as an improper use of affi plaintiff’s davit and counsel insists that testimony elicited thereby rejected. should be It .is in plaintiff’s admitted brief discretionary this is matter, but it is urged that where instrument employed refresh the recollection is parte an ex affidavit its use enables counsel suggest desired, answer object and besides defeats the taking by evidence deposi tions, as no more than letting amounts to the affidavit used testimony. Notwithstanding petition is addressed discretion of the Court, rejection the admission of a petition governed must be ordinary legal rules. Leavitt, Woodward v. 107 Mass. 9 A. R. 49. That use was in the affidavit justified circumstances shown WOODHOÜSE WOODHOÜSE
164 undertake writing and to this iner sation about the to state ing by this of Lapham & direct defendants. Taplin ney’s refreshing your paper that handed the Admr. examination petition the what that method v. Rowell witness Kelly, Vt. A somewhat Early get v. I witness the case with of Rutland have witness conversation counsel recollection, if examination, Clark, 89 Vt. in the examination submitted shown Mrs. Coburn juryman 195; similar herself and Dr. R. had affidavits, repeat you.” R. Davis v. was. for identification. question, was Co., claiming Martin took you right what At the called Plaintiff’s saying, 232, Atl. 491. Field, like hеr affidavits they Vt. Coburn, she as a witness same time to, you may look “And for 56 210, 69 Atl. raised part counsel it Vt. proceeding put *60 in After 426; Maho during the was asked the into the objected annexed purpose convei* exam show 652; repeated protests, the witness spite In examined the paper. of answering question. It admitted must be affidavits before made ap reason the use of affidavits that no sufficient witness; were first shown to the but it soon peared when very was at reluctant In that she least witness. appeared testimony think her we elicited connection circumstances, rejected. should not with the be affidavits applications [107, It undoubted rule that is the 108] ground jurors of misconduct of a new are addressed trial on necessarily inquiry of the Court. The to the sound discretion general fact, matters and no rules can be laid involves of down. justice of purity jury whether ends and the of granted require trial in particular trials a new to be case must particular Baxter, own be determined its facts. Downer v. Ketchum, 467, 30 Vt. 474. It is said Re 92 280, Vt. 102 Atl. according 1032, application that such an must fail prevail or strength its appeal judgment to the and conscience of Rooney, court; and, Ryan 88, v. 88 891, Vt. 90 Atl. granting the reason for a new trial must collected from the whole and from the nature of the ease considered under comprehensive ail its circumstances. scope Such is the > only inquiry. disputed involves determination of facts, presence probable injury or absence of de through party complained feated the misconduct of; whether parties, attorneys either the their impli- their friends were 165 WOODHOUSE v. underlying ques misconduct; generally, the cated justice. administration of due policy public tion of —the these application illustrate the following cases additional 39; Town Powers, 35 Carlisle v. Vt. Dennison v. .principles: McDaniels, 363, 40 94 v. Vt. 440; McDaniels Sheldon, 38 Vt. Spear, Campbell, 746; Clement 46 Vt. v. Winslow v. 408; A. D. Lawrence, 1027; 524, 70 41 Atl. McCar v. Vt. 401; 56 State Vt. Willard, Norcross 82 739; 69 Atl. v. Langlois, 223, 81 Vt. ger v. 244, Warm, 447, v. 92 Vt. 105 Atl. 820; 72 Atl. State 185, Vt. Hannah, 469, 96 120 811; 2 Hannah v. Vt. Atl. A. L. R. examination of come to the the evidence [109, We 110] petition. light raised bearing upon issues the defendants have already appears, what be seen that should alleged juryman Paige. misconduct failed to establish contradictory proof is burden on that issue. The Theirs positive Brunell are met the direct and denial statements of testimony circumstances, In the Paige, whose unshaken. testimony of not a basis unsupported Brunell sufficient finding part juryman. for a misconduct of this It is satisfactory requires. proof Thrall not the law v. v. Lincoln, 356; Holman, 513, Vt. Flint 82 Vt. 517, 28 Atl. Warm, 232; State Vt. 105 Atl. A. L. R. 811. *61 testimony respecting juryman conduct Martin presents a more doubtful situation. It is evident Doctor that and Mrs. took an active interest in during Coburn the case They acquainted were trial. not with either of the parties, but manifestly sympathies strongly their were plaintiff. testimony Mrs. Coburn’s before the weighed commissioner is to be light of this fact. was She a reluctant witness for weight defendants, which makes testimony gave as she them; favorable to it will be necessary distinguish to care- fully between fact opinion, and as the may latter though easily, unconsciously, her prejudice. affected appears It that Mr. Martin and Dr. Coburn neighbors were and friends. Martin had intimate occasion call to at Dr. Coburn’s during house twice on business the Woodhouse trial, first early time in the trial, and other about two or three weeks before the trial ended. It was on the latter occasion that it is alleged claimed misconduct occurred. With to reference visit, the first Martin testified that Dr. Coburn inquired how get happened he to jury, onto the and explained that he how WOODHOUSE nothing thе facts he said about get excused; that he tried opinion regard its express any not ease, did in the and matter; with reference to that opinion outcome—then no leaving referring plain- said, as was Coburn just that he Dr. re- worried he counsel, you”; “Warren is about and that tiff’s I He and have need be worried about me. “He plied, ’’ have, just the same as rest of them always good friends been attorneys the defendants. Mrs. Coburn testified meaning the present during interview, first over- she was that quoted reply remark and Martin’s only Dr. Coburn’s heard respecting substan- testimony Her this conversation is above. significance tially only as Martin’s. The attached the same telephone is its claimed relation communica- this evidence day appears It of the trial. the last tion from Dr. Coburn morning eight o’clock that Austin about Dr. called Mr. Cobum which, according to Mrs. Coburn’s conversation held “something worry, like he needn’t testimony, Dr. Coburn said up appears everything right all here.” in this connec- employed by parties Austin had been interested tion that Mr. Coburn, ferry day had written project, in a before Dr. Mr. Austin respecting that matter. testifies elect, a senator ferry project related to the and not telephone conversation any juror case; in the that after Case to the Woodhouse how physically, Dr. Cobum asked he was friendly salutations under, inquired that he was he how was spoke the strain ‘ ‘ Everything said, your I enduring it; he then letter. have your need add that to worries.” This right all here. You evidence, clearly corroborative testimony supported and. attempting suspicion even that Dr. Coburn was any disposes of juryman result of interview with Mar- communicate tin. scholarship second of Martin’s call related to a occasion University substance,' of Vermont. Martin testifies
in the reading newspaper in; when he doctor went that the present; Dr. Cobum Coburn said that Mrs. reading getting along; and asked how we were the trial just coming mighty slow; that it was replied that witness *62 got through; had most that witness if said asked doctor probably take or it would two three weeks not—that they said in nothing else was anyway; connection with longer nor that neither doctor ease; Mrs. Coburn the Woodhouse WOODOEOUSE expressed any opinion coming about the case out; how express any opinion, that witness did not to them particularly express opinion did not “the and confidence that plaintiff ought large to and would recover a verdict.” In having said, cross-examination Martin informed admits when concerning contents affidavits, of Mrs. Cobum’s “I don’t anything go remember They about it. can to hell.” Other testimony than was unaffected the cross-examination. generalize
It somewhat difficult to Mrs. Coburn’s testi- mony. examination, referring She testified direct visit, occasion of Martin’s second she and the doctor were talking joined about the Woodhouse case and that Martin conversation; say very Martin didn’t much, so she doing talking. the doctor the most of the When asked state what the conversation examining was after she affidavits, replied: “I cannot do different than read it just as it here,” referring Though pressed affidavits. by repeated questions give substance Martin’s statements, she re- iterated that she was unable to do so—that she only could state appeared it as it in the affidavit. Asked whether Martin said' anything probable verdict, replied: about she “I suppose have”; but in this connection he must she testified that Martin say right out, “I think get did not she will any- verdict,” or thing of that sort. answer to question, one she testified she remembered the substance of what Martin said as in the stated affidavit, but, testimony when her is analyzed, the most showing defendants succeeded her was that Martin talked about matter such a gathered manner that she the im- pression thought he get would verdict. all summed up much in the pretty following questions and answers: stating any
“Q. you amount, Without and Dr. Cobum talking whether about the verdict would good-sized be a you? not, or weren’t verdict talking Why,
A. we were about in general, but what we I know. said, don’t whether Did'you talk about the verdict
Q. large would small? did, because Why, probably we we naturally A. think it be. would sympathies were in that
Q. direction, Your they? weren’t *63 W0ODUOUSE WOODHOUSE ET UX. 16S Yes. A.
Q. you expressed your And view about it? Yes, expect
A. we did.
Q. his expressed And the Doctor views? Why,
A. I so. yes, think
Q. expressed And Martin his Mr. didn’t he? right anything. say I know that did out Why, A. don’t he agreed Q. you, you, that he didn’t You understood from that conversation? Why, probably we felt from what was said
A. that opinion.” his testifies, substance, nothing
Mrs. Coburn was said In in the affidavit that is not true. her cross-examination, she states, effect, she did not intend give affidavit to anything impression general else but an of the effect of the con- versation, might, and that perhaps, she mistaken the im- pression Martin expressed had formed any opinion or on merits of case. examination, redirect the fact is developed that supposed, Mrs. Coburn giving when her direct testimony, that she permitted would not be to answer in the language of the Thereupon affidavit. she was asked:
”Q. you (it) Now can tell in substantially language (now) affidavit what the conversation was? A. Like what is in the affidavit?
Q. Yes. Well, expressed opinion
A. he his that she get would verdict. Q. verdict, large What kind of a small ? your Tell it in language. any Tell language, own it Mrs. Coburn.
language affidavit, good if that is enough for you, you permitted are to. read You the affidavit? — Yes, I many A. read it so times Q. Well, now you let’s have that. Can any state it language in substance? Why, I
A. don’t believe I can.
Q. Well, you do the best can. I can’t.
A. it Q. can’t tell different than it You stated here? No.” A. is seen that the defendants
Thus it have failed to show even what Martin said. The substance most they able v. WOODHOUSE gathered from undisclosed impression is Mrs. show Coburn’s conclusion) Martin ex- words her (in other conversations merits pressed opinion unfavorable being Martin testimony positive Her did of the case. fol- anything opinion, like avowal of such an
make a direct may impression Martin’s Mrs. Coburn’s attitude lows that *64 colored, begotten, by if not her own'state well have been unsatisfactory very affords a mind. The as a whole finding alleged, namely, a misconduct Mar- basis for of the ought expressed opinion that the to and would tin large prevail damages. and recover amount of Mrs. Coburn only Martin are the witnesses to what occurred on the occa- question. testimony sion in respect- dubious of the former ing matter met positive whole the direct and denial expressed of the latter he opinion complained of, or any opinion coming as to how may the case out. be that Martin suffered Doctor and Mrs. Coburn to talk about case presence, disregarded in his or further juryman by oath taking part conversation, but such misconduct, repre- hensible as it be, would is not petition. made the basis of this We are constrained to petition hold that the for a new trial is sustained, there not a sufficient basis evi- finding dence for a of the misconduct complained of. Judgment Petition new trial dismissed affirmed. costs. J.,C. concurs in foregoing opinion in all re- Watson, spects except (a) the conclusion reached on the motion set (b) verdict aside and disposition petition new Eespecting trial. the former, he is opinion that the
record shows the sums to which the verdict was reduced are so manifestly excessive as to be clearly unreasonable, and conse- quently the failure of the court to make such further reduction as was sufficient to relieve the verdict of such excessiveness was an abuse of discretion. As to latter, he would find that the juryman expressed Martin the opinion set out in the petition, entitling the defendants to a new trial. respects these two and to that extent he dissents.