ON APPELLANT’S PETITION FOR REHEARING
*592Stern, Reiter, Day & Anderson and Philip A. Levin, Portland, and C. Ray Johnson, Tillamook, for the petition.Before Perry, Chief Justice, and Lusk, Warner and Kester*, Justices.
Or Appellant’s Petition eor Rehearing
LUSK, J.The defendant’s petition for rehearing urges the following points: (1) that this court erred in permitting plaintiff to amend his complaint during the trial so as to allege that defendant had sexual intercourse with plaintiff’s wife. It is asserted that the amendment is not supported by any competent evidence; (2) that we erred in holding that the question of the incompetency of certain testimony of the witness Leona Wheatley was not properly preserved; and (3) that the court should exercise its power to notice *593palpable error in order to avoid a gross miscarriage of justice “under the circumstances of this ease,” one of the circumstances pointed out being the amount of the verdict for punitive damages, to-wit, $25,000.
We will consider Point No. 1 last.
As to Point No. 2, we have re-examined the question and are satisfied that the ruling was correct. The authorities upon which we relied are not questioned, and no opposing authority has been cited. The rule which we applied for determining the sufficiency of an objection to evidence in the circumstances of this case in order to preserve the question for review by this court is well established. A similar ruling will be found in Hryciuk v. Robinson, 213 Or 542, 326 P2d 424, decided June 4, 1958.
As to Point No. 3, it may be granted that the verdict for punitive damages is large. Whether it is excessive is not for us to say. In a jury trial the determination of such matters is committed by our Constitution exclusively to the jury, and jurors at times have rather strong opinions about the gravity of the offense of breaking up another man’s home. That, according to the evidence, was the wrong done to the plaintiff by the defendant. We do not, of course, pass on the weight of the evidence. But, since the appeal made to us is, as stated in the petition, “in order to avoid a gross miscarriage of justice,” it is not amiss for us to say that the defendant’s own testimony supported the charge.
Apart from this, there is no palpable error. On the contrary, the question where to draw the line in determining what testimony is and what is not an exception to the hearsay rule when declarations of the alienated spouse are offered in evidence in this class of cases, is sometimes one of great difficulty. *594Kuhnhausen v. Stadelman, 174 Or 290, 148 P2d 239, 149 P2d 168, cited by the defendant, is far afield. In that case the trial judge told the jury in his instructions that the law in a malicious prosecution action, as established by this court, requires the judge to charge the jury as to what facts in evidence do or do not constitute probable cause, but that he did not agree with the law as so determined and accordingly he would leave the question to the jury. This was the fundamental error in that case that we deemed to be so palpable, as well as egregious, as to require us to notice it notwithstanding the absence of an exception.
In presenting Point No. 1 counsel have assumed that we did not rule on the merits of the question but declined to consider it because it was not before us. This is not the case, though there is something to be said for the view suggested. The amendment was offered to conform to the proof, and the only objection to it disclosed by the record was on the ground of surprise. In ruling on that objection the trial judge commented that the defendant had already submitted a requested instruction based upon the assumption that adultery was an issue in the case. Thus, the defendant can scarcely claim, and does not now claim, to have been surprised. Nevertheless, in view of the basis on which allowance of the amendment was sought, we should not be disposed to ignore the error if, in fact, there were no evidence to support the amendment. We think that there is such evidence and most of it comes from the defendant himself. During the period of alienation, and while the plaintiff was required by his job to be away from home a large part of the time at night, the defendant clandestinely met Mrs. Noteboom and took her for rides in his automobile. There were some 50 of these trips, about 15 to Oceanside, a beach *595resort near Tillamook. He took her to Portland two or three times, and on one of these occasions they went to the office of an attorney in Portland whom the defendant consulted about getting a divorce. He entertained her at dinner and took her to the theater or a movie. On one occasion she registered at the Multnomah Hotel as Mr. and Mrs. I. E. Savin and spent the night there. The defendant met her the next day at the hotel and drove her to Seattle, where he registered at the Edmond Meany Hotel under the names of Mr. and Mrs. I. E. Savin. He explained that the reason for thus registering was “so that it would not be embarrassing to her.” They spent two days in Seattle, during which they were together most of the time. They had their meals together, went to movies and took sightseeing trips around the city. He paid all the expenses. He testified that he was never in the hotel room which Mrs. Noteboom occupied, but stayed the two nights at the home of his sister in Seattle. On their return to Portland he paid for a room for Mrs. Noteboom at the Multnomah Hotel, where she remained that night, while he returned to Tillamook.
There is ample evidence of an amorous relationship between the defendant and Mrs. Noteboom, and the opportunities for adultery, including the Seattle adventure, were numerous. The defendant’s explanation for registering at a hotel as man and wife might well test the credulity of a jury. Both he and Mrs. Noteboom were married, but'not to each other. The jury had the right to reject the defendant’s denial that he was ever in the hotel room in Seattle. The court did not err in allowing the amendment. See, Kerr v. Kerr, 118 NYS 801, 134 App Div 141; Baldridge v. Matthews, 378 Pa 566, 106 A2d 809.
The petition for a rehearing is denied.