The defendants are the parents and the plaintiff the wife of Charles Douglas Woodhouse, generally called Douglas Woodhouse. The marriage of plaintiff and her husband occurred in September, 1918, following an acquaintance and courtship extending over several years. Their marriage engagement was made in February, 1918, but was not announced to the defendants until a short time before the wedding. Douglas was then about 30 years old and the plaintiff five years younger. The relations of Douglas and the plaintiff became estranged in
The action is tort for the alienation of the affections of plaintiff’s husband. The defendants’ answer is a general denial. There was a trial by jury at the September Term, 1922, resulting in a verdict and judgment for the plaintiff. The case was argued in this Court at the May Term, 1924, on defendants’ exceptions and on a petition for a new trial on the ground of misconduct of jurors. The questions first briefed relate to the sufficiency of the evidence, raised by a motion for a directed verdict. Some of the points covered by the motion were also presented by requests to charge. As the exceptions saved to the overruling of the motion for a directed verdict and to the refusal of many of the requests to charge raise the same questions they do not require separate treatment.
The grounds of the motion for a directed verdict are numerous and involved. It would prolong this opinion unnecessarily to discuss the grounds seriatim. It will be more profitable to examine the whole evidence in the light of the principles underlying the plaintiff’s right of recovery, supplementing such general discussion by the consideration of particular points that are not thus adequately covered.
Defendants’ counsel give prominence in their brief to what they refer to as “the angle of departure.” Speaking of the relations of parents to a daughter-in-law they assert without qualification that parents owe the daughter-in-law no legal duty. Manifestly this is not an accurate statement, speaking gener-. ally. A proper understanding of the rights and duties of parents respecting the marital relations of their children is of vital importance to a correct determination of the questions presented for review. It may be admitted that the marriage of the child • imposes no obligation upon the parent to receive the child’s spouse within the bosom of his own family. It has been said that the parents may hold aloof, decline to recognize the wife, show no interest in her or her children and even disinherit their son for marrying without their approval; in short, that the law requires only that they do not meddle unjustifiably with the domestic felicity and affections of their son and his wife. Cooper v. Cooper, 102 Kan. 376, 171 Pac. 5.
The authorities are agreed upon the proposition that a parent will not be liable to the spouse of his child for causing their separation, if the counsel given and persuasion used by him are such as he fairly and honestly considers to be called for by the best interests of the child; that is, if his acts are done in good faith and without malice. The law of the subject is well stated in Multer v. Knibbs, 193 Mass. 556, 79 N. E. 762, 9 L. R. A. (N. S.) 322, 9 Ann. Cas. 958, where the prior decisions are collected For additional cases see Roe v. Roe, 315 Ill. 120, 145 N. E. 804; 13 R. C. L. 1471, § 522; notes 9 L. R. A. (N. S.) 322; 46 L. R. A. (N. S.) 465; Ann. Cas. 1917E, 1017.
While the law recognizes a superior right of interference on the part of parents, and will justify such interference for causes which would be no justification in favor of strangers, it is not to be understood that parents may influence their child to separate from a spouse with impunity. The relation of parent and child does not justify a deliberate attempt without cause to bring about such a separation. To do so without justifiable cause is a tort for which the parent like any other person is liable. This is the doctrine of practically all the cases, including many cited by the defendants. See note 9 L. R. A. (N. S.) 322, 324. It is sometimes said that in such an action the parent is liable only when he acts maliciously in bringing about the separation; and, again, that stronger evidence is required to maintain the action against parents than against strangers. But the distinction found in the cases is merely a matter of terminology. In principle they are in entire accord. The distinction between the liability of parents and that of strangers is only in what will
It follows that the quo animo is the important consideration where parents are charged with alienating the affections of a child. Was it malicious or was it inspired by a proper solicitude for the welfare and happiness of the child? In reviewing the evidence, we are to assume that the motives of the defendants in what they did were good unless there was evidence fairly tending to show the contrary. But the claim of the defendants that the presumption indulged in their favor should be weighed as evidence on the authority of the Cowdry Will Case (77 Vt. 359, 60 Atl. 141) must be rejected as unsound. The function of this presumption is locative and not probative, as to which see Sheldon v. Wright, 80 Vt. 298, 320, 67 Atl. 807; Rutland Ry. Lt. & Pr. Co. v. Williams, 90 Vt. 276, 281, 98 Atl. 85; Zabarsky v. Employers’ Ins. Co., 97 Vt. 377, 123 Atl. 520.
Express ■ malice need not be proved. Malice in the sense used in actions of this kind implies no more than the intentional doing of a wrongful act without just cause or excuse. Direct evidence of the parents’ wrongful motives is not required, but malice may be inferred from conduct, as in other cases where it is in issue. Cornelius v. Cornelius, 233 Mo. 1, 135 S. W. 65;
Defendants’ counsel have reviewed the evidence in detail, but they treat it piecemeal, asserting the insufficiency of this circumstance or that circumstance to support the verdict. This is not the real test of its sufficiency. Separate acts or separate lines of conduct may not show malice, for instance, while a number of acts considered together may disclose a purpose which would not appear from those acts considered separately. It is a familiar saying that ‘ ‘ many littles make a mickle..’ ’ To characterize the defendants’ conduct properly, it is necessary to consider their actions in the light of all the circumstances taken together. What, standing alone, might be regarded as an insignificant act, may take on an entirely different hue when viewed in the light of other circumstances. Besides, regard must be had for the cumulative effect of the whole evidence instead of the weight of each piece of evidence standing alone. Moreover, the fair inferences from the evidence based upon the natural course of events and of human experience are as much evidence as the principal facts from which the deductions flow. State v. Kamuda, 98 Vt. 466, 129 Atl. 306; Austin v. Bingham, 31 Vt. 577. If it were conceded that no one of the individual acts of the defendants shown in evidence necessarily disclosed impropriety of conduct, still it would not follow that the evidence as a whole did not support the verdict.
The following are some of the recent cases where the doctrine respecting the use of circumstantial evidence to establish alienation of affections has been discussed: Mussellem v. Freun, 101 Okla. 45, 225 Pac. 370; Hope v. Twarling, 111 Neb. 793, 198 N. W. 161; McGuffie v. Hooper, 122 Me. 118, 119 Atl. 111; Leavell v. Leavell, 122 Mo. App. 654, 99 S. W. 460; Briles v. Briles, 66 Ind. App. 444, 112 N. E. 449; Jones v. Jones, 96 Wash. 172, 164 Pac. 757; Cornelius v. Cornelius, 233 Mo. 1, 135 S. W. 65; Nelson v. Nelson (C. C. A.) 296 Fed. 369. In Cornelius v. Cornelius it was argued as here that there was no proof of wrongful motive in what the defendant said or did; and none that what he said or did caused the separation. The Court had this to say: “But learned counsel inadvertently argue unsoundly
Counsel quote extensively from the defendants’ evidence and devote considerable space in their brief to a discussion of what it tends to show. It is hardly necessary to say that the function of this Court on review of the motion is confined to determining whether there is evidence tending to support the material allegations of the complaint. We cannot weigh the evidence, and, so far as it is conflicting, we can consider only such as supports the verdict. Where different inferences may reasonably be drawn from the evidence we are bound to accept the inference most favorable to the plaintiff.
Defendants’ counsel take up the complaint paragraph by paragraph and undertake to show that the evidence does not sustain the action on that particular branch of the case. Thus, they challenge the evidence bearing on the various allegations of the means by which it is claimed the alienation of their son’s affections was accomplished, and assert either the want or the insufficiency of evidence to support the particular allegation. But it is not profitable to review the evidence in this manner. The test is whether the evidence supports the ultimate facts alleged in the complaint. It is not essential to a recovery that the evidence should support all of the allegations of means employed to accomplish the alienation. 13 R. C. L. 1463, 1464. In other words, the plaintiff need not prove more than is necessary to a recovery though more is alleged. Snyder v. Parmalee, 80 Vt. 496, 68 Atl. 649; Bosworth v. Bancroft, 74 Vt. 451, 453, 52 Atl. 1050. Respecting the means employed by the defend
It would not be profitable to undertake any extended review of the evidence. It covers more than 1,500 pages besides a large number of written exhibits. We have examined the evidence and the extended comments of counsel in respect thereto with the care commensurate with the importance o£ the case, and are convinced that the motion for a directed verdict was properly overruled. It is not, nor can be, questioned that the affections of plaintiff’s husband in some way became alienated from her, resulting in the loss of his consortium. We are satisfied there was evidence, if believed, from which the jury would have a right to find that this came about through the active interference of the defendants prompted by malice toward the plaintiff.
This marriage was in no sense a misalliance. The plaintiff was a talented woman of good character and social standing. Douglas had been acquainted with her for several years, and for at least three years before the marriage had been a constant visitor at her home, much of this time an ardent suitor. It was a union formed upon mature deliberation. There was no evidence of misconduct or unworthiness on the part of the plaintiff. On the contrary, both defendants testified that they at no time had any cause for criticizing her. Both testified that they did not regard her as beneath their son, and throughout the trial they professed to have had no objection to the marriage. It follows that there is a total absence of any excuse for parental interference by advice or otherwise such as parents might give without malice. Besides, the defendants do not claim, but rather deny, that they even advised a separation; so the principle on which much of the defendants’ argument is based has no application. See Lockwood v. Lockwood, 67 Minn. 476, 70 N. W. 784. Defendants’ actions ever after they learned of Douglas’ engagement to the plaintiff were so wholly inconsistent with their professions of regard at the trial that the jury would be justified in discrediting their testimony. They advance no reason for the separation except Douglas’ infatuation for Mrs. MacClelland ; but the evidence shows that the alienation of his affec
The defendants discuss at some length the rule respecting inferences that may be drawn from circumstantial evidence, citing with other cases Wellman, Admr. v. Wales, 97 Vt. 245, 253, 122 Atl. 659, 662. That the rule invoked applies only when the liability rests entirely upon circumstantial evidence is sufficiently indicated in the Wales ease. It is there said that in such cases the circumstances taken together must reasonably tend to support the inference; that the conclusion from the facts offered must be at least the more probably hypothesis with reference to the possibility of other hypotheses. In the case at bar the evidence was not wholly circumstantial; but, had it been, we take the view that it answered the requirements of the rule stated above.
It is urged that plaintiff failed to establish the actionable consequences of the conduct complained of, in that the case does not show that the loss of consortium was due to the defendants’ acts, but does show that it was due to her own acts induced by Douglas’ conducfwith Mrs. MacClelland. There can be no question that loss of consortium was fully established. The real question then relates to causal connection. It is argued that the loss of consortium arose from plaintiff’s choice; that she could not by her conduct in refusing to continue the marital relations supply the otherwise missing element. The argument on this ground of the motion loses sight of the basis of plaintiff’s right of recovery, as well as the evidence that connects the de
It was held in Beach v. Brown, 20 Wash. 266, 55 Pac. 46, 43 L. R. A. 114, 72 A. S. R. 98, that procuring a divorce from her husband would not prevent the wife from maintaining an action against a third person for prior alienation of his affections.
It is not necessary to confer a right of action for alienation of affections that the defendants’ conduct be the sole cause of the alienation or separation. It is sufficient if it is the controlling cause. Baird v. Carle, 157 Wis. 565, 147 N. W. 834; Hughes v. Holman, 110 Ore. 415, 223 Pac. 730, 31 A. L. R. 1108; Rush v. Buckles, 93 W. Va. 493, 117 S. E. 130; McLery v. McLery, 186 Wis. 137, 202 N. W. 156.
When all the evidence upon the cause of the separation is considered it is clear that it made a jury question whether the defendants were answerable for the loss of consortium. The following facts are relied upon in support of the claim that the plaintiff voluntarily separated herself from Douglas, and that the loss of consortium arose from her own choice. The plaintiff had discovered Douglas in Washington with Mrs. MacClelland. He represented to her that the woman was his cousin. Relying on his representation, and at his request, she returned with him to Burlington where they lived together for a few days at the home of her parents. It was there arranged that the plaintiff should go to Texas for her health. Douglas provided funds for' the trip and accompanied her as far as New York. He promptly
The whole evidence lacks the conclusive effect claimed for it. It fairly tended to show that the loss of consortium had occurred as early as November, 1919, which was before Douglas went to Washington. Before any of the events relied upon by the defendants to defeat recovery the alienation of Douglas’ affections had become an accomplished fact, to the extent that he was engaged to marry the MaeCIelland woman. There was evidence that his subsequent manifestations of interest in or care for the plaintiff were mere subterfuge. When discovered in company with Mrs. MaeCIelland, he disarmed the plaintiff’s suspicions by falsehood. His motive in returning with plaintiff to Burlington followed by arrangements 'for her to go to Texas, ostensibly for her health, is disclosed by the fact that during his brief stay with the plaintiff he was consulting an attorney with reference to divorce proceedings which were later instituted. Clearly there was evidence from which the jury could find that the acts and conduct of the defendants were the controlling cause of plaintiff’s loss of consortium. The fact that there was conflicting evidence, or evidence that other causes may have contributed to this result, made it still a jury ques
Exceptions to Evidence
The plaintiff took the testimony of Douglas "Wood-house by way of deposition. When the deposition was offered in evidence, the defendants objected to certain portions of it. The first group of exceptions briefed relate to claimed errors in admitting certain parts of the deposition when portions of the context had been excluded, the claim being that the striking out of a part made a material change in the meaning of the part remaining. The record does not support the claim with reference to any of these items. The defendants did not .attend Douglas’ wedding. Whether he had notified them of the date of his marriage was in issue. He had testified that he had not wired the family. He was then shown a letter and asked if an indicated part of it refreshed his recollection as to whether he had done so or not. The question was objected to for an immaterial reason, and the witness answered: “It says so there. I must have wired them.” The objection in the court below that the answer brought in the contents of the letter was sustained by striking out the reference thereto, and the rest of the answer was allowed to stand. The part excluded did not materially affect the relevant part of the answer. Our practice permits the exclusion of part of the answer, provided the meaning of the part left is not changed. It should be noticed, in connection with questions relating to Douglas’ testimony, that the trial court found he was an adverse witness within, the meaning of the statute.
Douglas had testified in the deposition that sometime in 1919 he had told the plaintiff, in substance, that his parents had threatened to disinherit him. He was then asked if it was a fact and answered that it was not. Then followed the question, “Were you lying to her?” to which he replied, “I was.” The testimony leading up to the quoted question and answer was excluded on defendants’ objection, but they insisted that the single question and answer should stand. The court correctly ruled that it was so related to the part objected to by the defendants that it should not be received standing alone.
Respecting assigned error 21, it is enough to say that the question argued was not raised by objection in the court below. Assigned errors 25 and 26 arose in this way: Douglas was being examined with reference to the matters that had occasioned disagreements between him and his wife and “the Florida trip,” “the conduct of the defendants at the hospital,” “the closed door of their house, speaking psychologically,” “their absence from the wedding,” and “their so-called indifference” had been specially referred to in that connection. He had testified that the interpretation of those acts had not been the occasion of their disagreement. Then followed a cross-examination for the evident purpose of showing the contrary, which was excluded on defendants’ objection (except a single question and answer of no importance here). The last question excluded again enumerated the acts to which the inquiries were directed. The succeeding questions admitted against objection referred to “those topics, those facts.” It was urged as a ground of objection that the result of striking out the previous question and answer gave the admitted evidence “a false reference.” But the contrary fairly appears from the whole record.
The following consecutive questions and answers were contained in the deposition:
1. “Q. At that time were you resentful of the meddling of your parents?
A. Never.
2. Q. Did you resent the attitude your parents had taken toward your marriage ?
A. I thought it was unjust.
3. Q. Did you try in some manner to express your resentment to them?
A. I called their attention to the injustice of it.”
On defendants’ objection the answer to the second question was excluded. Thereupon, the third question and answer were objected to on the ground that, as the record stood, there was no indication that he had resentment, and that the answer was not responsive. The admission of this question and answer is assigned error 56. The claim now advanced that the reference
Under assigned error 22 the defendants challenge the admissibility of the following question and answer in Douglas’ deposition on the ground that it was immaterial: “Q. Now she interpreted your parents’ attitude to her and to you with reference to money matters as hostility, didn’t she? A. As I recollect she interpreted all their attitudes as hostile.” The record shows that the exception taken was to the overruling of defendants’ motion to strike out the answer as not responsive. The answer was responsive to, but broader than, the question. This was not pointed out as the ground of objection with suffiicent definiteness to make it available on review. Besides, the question of materiality was not raised below, and so cannot be relied upon here. See Hurlburt v. Hurlburt’s Estate, 63 Vt. 667, 670, 22 Atl. 850; Walsh v. Pierce, 12 Vt. 130.
Assigned error 74 relates to a question and answer in the deposition of Dr. Slocum, the physician who attended Douglas when he was sick in a hospital with typhoid' fever, introduced in evidence by the plaintiff. The witness testified that he saw Douglas’ father at the hospital in the room occupied by Douglas and the plaintiff; that the father did not recognize the plaintiff; that afterwards the father said to the witness, “I suppose you think it strange the way I treat Mrs. "Woodhouse, but I do not recognize her as a member of the family.” Then followed the testimony to which this exception relates: “Q. He did in that conversation make a comparison of her to his son? A. He told me that as far as his son was concerned he could have everything. * * * As far as his son was concerned no expense was to be spared, but as far as his wife was concerned he did not recognize her as a member of the family.” The italicized part of the answer was objected to as “an interjection and not proper.” It is now claimed that the matter objected to was immaterial and not responsive. We spend no time with the merits of the question argued, for if error should be found it would be harmless, the witness having already testified to the same thing without objection.
Witness Hill had testified that some time in June or July, 1919, he caused the garage to be locked in which was kept a car that the plaintiff had been driving to prevent her having access to it. By whose direction this was done was in dispute. The witness testified that it was by Douglas’ direction, while the plaintiff claimed that it was by the direction of defendant L. E. Woodhouse. Witness was asked if he did not tell Douglas a day or two after that his orders came from headquarters and that his father had told him to lock up the car, which he denied. For the purpose of impeachment the following question and answer in Douglas’ deposition was offered in evidence: “Q. And did Mr. Hill tell you that his orders came from headquarters? A. I believe he did.” The admission of this testimony against the objection that the word “headquarters” did not refer to defendant L. E. Woodhouse, and that it had no tendency to impeach the witness, is assigned as error. The impeaching quality of the statement was not the real point of the objection. The evidence fairly tended to show that the reference was to the defendant L. E. Woodhouse. If so intended, which was a question for the jury, the statement that his orders came from headquarters would tend to contradict the witness. It is not essential, as claimed by .the defendants,
One of the important issues of fact arising in the introduction of evidence was whether witness Hill was acting in certain things done by him as agent, or under the direction, of the defendants or either of them. Considerable of his examination was directed to this issue, and was permitted to be conducted as in cross-examination, since he was found to be an adverse witness. Plaintiff claimed and was endeavoring to show that although the witness denied the agency, yet his acts proved the contrary. Besides, she was undertaking to show the witness’ bias in favor of the defendants which was a relevant issue. Numerous exceptions relied upon relate to one or both of these lines of inquiry. Assigned errors 88, 89, and 92 are of this character. It is enough to say that none of these exceptions show reversible error. If some of the circumstances inquired about are somewhat remote, the question is not reviewable because it was a matter of discretion, abuse of which is not undertaken to be shown. Respecting proof of agency, direct evidence is not indispensable — indeed frequently is not available — but agency may be shown by the acts of the parties. Walsh v. Pierce, 12 Vt. 130, 138. Circumstances such as the relation of the parties to each other and their conduct with reference to the subject-matter under investigation may be relied on. It has been held that, notwithstanding the alleged principal and agent are the only witnesses called and both deny the existence of the relation, still the finding of the agency may be justified upon consideration of the whole evidence and the fair and reasonable inferences that may be drawn therefrom. 21 R. C. L. 820. Apart from its bearing on the issues, the evidence challenged by these exceptions was too colorless to be harmful.
Assigned errors 96, 97, and 98 are briefed in a separate group and grow out of the testimony of Hill, to the effect that he had at times aided Douglas to deceive his wife as to his whereabouts. The first exception related to an answer which was substantially the same as an answer already given without objection. This exception, then, would not in any event present reversible error. Herrick v. Town of Holland, 83 Vt.
Defendants brief a group of exceptions under the caption, “Evidence received against the defendants involving acts for which they were not legally responsible.” The basis of these claimed errors is that the evidence does not connect the defendants with the acts in question. Assigned error 35 raises the question whether the court erred in admitting the following question and answer in Douglas’ deposition: “Q. On your trip to the Adirondacks wasn’t your wife in tears most of the way? A. I remember she cried a little after we got there, but I don’t remember she was tearful while we were going there.” It was not a valid objection that there was nothing to connect the defendants with the “crying fit.” The attendant circumstances were sufficient to make it a jury question whether her grief was due to the alienation of her husband’s affections. If so found, it would be material on the question of damages. The fact the evidence did not disclose that the immediate cause of her grief was something that the defendants then said or did is not controlling. As we have seen, there was evidence connecting the
Assigned errors 99, 100, and 101 are of a similar nature. These exceptions were taken during the introduction of Hill’s testimony respecting the method employed to transmit bills against Douglas to him at Reno referred to above. The particular point relied upon is that the plaintiff failed to make the promised connection. Defendants assert the want of such evidence without more which does not answer the requirement that the burden of showing error is upon the excepting party. But the plaintiff has pointed out evidence, which, with the inference to be drawn therefrom, supplies the connection.
It was in evidence that in June before her marriage the plaintiff became pregnant by Douglas. .She was permitted to testify, against the objection that what she did had no relation to the defendants, that she submitted to a criminal operation a short time after the wedding at her husband’s request. When the objection was interposed, plaintiff’s counsel stated that if counsel for both defendants assented to that proposition he did not wish to introduce the evidence, and on that suggestion it was excluded. When defendants’ counsel announced that they only asked to have the evidence excluded then, but waived no right to put it in as part of defendants’ case, the offer was renewed, and the evidence admitted under exception. It was not error to overrule the objection. The admissibility of the evidence did not depend upon the defendants having anything to do with the affair. Several grounds of admissibility could be mentioned. It is enough to say that the fact Douglas instigated the abortion would tend to negative the claim that there was anything about the operation to furnish reasonable cause for defendants’ interference. It would also tend to negative the claim that Douglas’ affections had cooled by reason of plaintiff’s pregnancy and this operation, and that his abandonment of the plaintiff was in part the result thereof.
Plaintiff was testifying to attempts made to get into communication with Douglas during the summer of 1920. Plaintiff’s Exhibit 154 was an envelope marked “special delivery,” bearing special delivery postage, addressed by the plaintiff to Douglas at the New York address of the defendants. It bore evidence on its face of having been forwarded to Chatham, Mass., where Douglas then was at the defendants’ summer cot
Another group of exceptions challenge the admissibility of evidence concerning Douglas’ flirtation with Mrs. MaeClelland on the ground that the acts were unconnected with the defendants. An exception was taken to the admission of the questions and answers on several pages of Mrs. MaeClelland’s deposition taken and offered in evidence by the plaintiff. This covered evidence of her relations with Douglas from their first meeting in December, 1919, until she met the defendants in Washington about May 1,' on their return from Florida. The claim of the defendants was that they knew nothing about what took place between Douglas and Mrs. MaeClelland before that time, that they were not responsible for it, and that it was not evidence against them. Plaintiff’s counsel advanced the claim that there was evidence tending to show the defendants knew what was going on. However, the court did not admit the testimony on that ground, but rather on the ground that it tended to show alienation. Defendants argue at length the proposition that there was no evidence that they knew anything about the incidents covered by this testimony. But they in effect concede the correctness of the ruling when they say “the MaeClelland
• Assigned error 82 refers to two questions and answers in the MacClelland deposition. In the first the witness testified that she met the plaintiff on Palm Sunday, 1920. The objection to this was that it occurred without the knowledge of the' defendants, which presents the same question as the exceptions last treated. The other objection was to part of the answer to the question, “What happened then?” The objection was sustained, and only the part of the answer not objected to was admitted in evidence. Under this assignment of error the defendants argue an objection to the further testimony to the effect that the witness then learned from the plaintiff that Douglas was married. But the question is not before us, not being referred to in the specification of errors relied upon by the defendants which is made a part of the record. If it were otherwise, the exception could not be sustained, as it does not appear that the defendants could possibly have been prejudiced.
Assigned error 84 relates to the admission of Mrs. MacClelland’s testimony that some time after meeting the plaintiff she had an interview with Douglas and her brother in which “this alleged divorce was discussed.” It apears that the evidence was received, against the objection that it did not affect the defendants, upon the suggestion of plaintiff’s counsel that it showed the probability of defendants’ knowledge of the matter from the notoriety of it. That it had no such tendency may be conceded; but it does not appear that the court admitted the evidence on that ground, or that it was made the basis of any such argument — the presumption would be to the contrary.
Against the objection that there was nothing to show that the defendants knew anything about it, this question and answer in Mrs. MaeClelland’s deposition were received in evidence: “Q. Did they (the defendants) say anything at all to you to indicate that they disapproved his (Douglas) former status toward you? A. No.” Their admission is the basis of assigned error 85. This was one of a series of questions and answers of the same tenor, which with the single exception were received in evidence without objection. It necessarily follows that harmful error is not shown. However, the question related to a time when there was evidence tending to show that the defendants did know of Douglas ’ relations with Mrs. MaeClelland, hence the objection was groundless. The point that silence would be no evidence against the defendants as they were under no legal obligation to speak is made for the first time here, and so is 'not noticed.
Testimony in Douglas’ deposition had been admitted to the effect that while at Reno he had correspondence with Mrs. MaeClelland with reference to the return of some rings which he had given her, and that he had been in sufficiently close touch with her to know what had taken place from time to time with reference to the alienation proceedings. Inquiries followed that
Assigned errors 58, 59, and 60 relate to what is referred to as the “rubber stamp matter.” The testimony covered by these exceptions is found in Douglas’ deposition, and was, in substance, that his father had a rubber stamp made some time as early as January, 1920, for use in forwarding Douglas’ mail from the father’s home in New York to the Wardmann Park Hotel, where Douglas lived during his stay in Washington. The relevancy of this circumstance appears when the claims of the parties are recalled. The plaintiff was claiming that Douglas went to Washington for a permanent stay when the defendants left their New York home for Florida, and that this was part of the plan to bring about the alienation. The defendants denied all connection with Douglas’ going to Washington, and particularly any knowledge that he intended to remain there when he accompanied them as far as Washington on their way to Florida. It would be a fair inference from this evidence that the father
Olga Roosevelt Bayne was a cousin of defendant L. E. Woodhouse who lived in Washington. She introduced Douglas to Mrs. MacClelland upon his arrival in Washington and was acquainted with their relations during Douglas’ stay there. Defendant L. E. Woodhouse was being examined as a witness called by the plaintiff and had testified that he and his wife and daughter Marjory stopped off in Washington on their way north from Florida in May, 1920; that when there Douglas brought Mrs. MacClelland to the hotel where they were stopping and introduced her; that he spent part of the afternoon with Mrs. Bayne; that he had something to do with her as trustee. Thereupon, he was asked, “Q. And your relations with her were confidential and friendly, were they not?” An affirmative answer was admitted against the objection that it was immaterial, and an exception was reserved in behalf of the defendant Mary Woodhouse. Defendants advanced the claim in their brief that this evidence was used by the plaintiff as a basis for the claim that Mrs. Bayne must have known of Douglas’ affair with Mrs. MacClelland, and because of these confidential and friendly relations with L. E. Woodhouse must have communicated that fact, whereby the defendants knew all that was taking place in Washington. Our attention is not called to anything in the record to support this claimed misuse of the evidence. Moreover, we are to review the ruling as the question was presented to the trial court. The witness being a party, the examination was being conducted as in cross-examination. We are unable to find affirmatively that in the circumstances the admission of the evidence violated the rules respecting such- examination.
Plaintiff had testified to circumstances showing Douglas’ estrangement from her, his absence in the Maine forest, her inability to discover his whereabouts, the search made for him, that she had not seen him after November 3, 1919, nor heard from him after January 5, 1920, until on March 14, 1920, she discovered him on the street in Washington with Mrs. MacClelland. Against the objection that it was immaterial she was then permitted to testify to the injurious effect upon her health of Douglas’ absence, of her inability to find him, and her lack
Defendant L. E. Woodhouse was being questioned respecting his knowledge of Douglas’ relations with Mrs. MacClelland prior to meeting her in Washington and had denied any such knowledge. He was then asked what the relations between his family and Mrs. MaeClelland were following the Washington visit and testified that it was simply a casual acquaintance brought on by the event in Washington. This was followed by the question and answer which are the subject-matter of the fourth assignment of error: “Q. What I want to know is whether you regarded that woman who was placed by you as matron of honor at the wedding of your daughter as a casual acquaintance? A. Exactly.” Following the answer defendants’ counsel objected to the evidence as immaterial, giving as the reason for the objection that Mr. Woodhouse did not place her there. The court denied a motion then made to strike out the evidence, assigning as a reason that the answer was on the record without objection. It is argued in support of the exception taken to this ruling that the action of the court was an abuse of discretion. The only complaint is that the question contained the erroneous assumption that the witness conferred the honor upon Mrs. MaeClelland. It was undisputed that Mrs. McClelland served as matron of honor at the wedding, but there was a disagreement as to how she came to be selected, the plaintiff undertaking to show that it was by choice of the defendants. In the circumstances the question was proper cross-examination. The question was not calculated to mislead the witness and the answer was responsive. The defendant had ample opportunity to modify his answer if not given understandingly. The defendants fail to show that they were injured
Another group of exceptions relate to evidence admitted against the defendants of acts which it is claimed they had a right to do, upon the theory that the acts were a breach of duty toward the plaintiff. Assigned errors 43, 44, and 46 of this group do not require attention, as the record does not disclose that any ground of objection was assigned below. Douglas had testified concerning what he characterized as a struggle with himself, and that he was in a grievous quandry what he was going to do regarding his marital affairs. In this connection hé had stated that he did not then hope for a reconciliation of his parents with his wife. He was then asked, “Did you consider it hopeless to try to get them to recognize her as a member of the family?” and answered in the affirmative. This question and answer were admitted in evidence over the objection that it called for the opinion of the witness without giving anything upon which the opinion was based. The theory of the defendants is that if Douglas had given his reason for the opinion, it undoubtedly would have been the indifference of his parents, and that indifference is not a breach of duty. The obvious answer is that the question did not call for a matter of opinion, but for the witness’ state of mind. It was direct evidence of the effect of the defendants’ conduct upon Douglas which bore upon the ultimate question of alienation.
The plaintiff was undertaking to show by Douglas the defendants’ interference in his marital affairs. He was an adverse witness, and the plaintiff was forced to resort mainly to circumstantial evidence to prove the fact. During the time to which the evidence presently to be noticed relates the plaintiff was staying at Westfield, Mass., and Douglas was at the defendants’ summer home on Long Island. He admitted that he was then in trouble over his marital affairs, but denied that the defendants were connected with it. A contemplated trip to West-field about September I, 1919, had been postponed. He was asked if he recalled anything happening between him and his parents which caused the postponement and answered in the negative, “unless that was the time my sister got into trouble.” Letters identified as written by him to the plaintiff at this time were shown the witness to refresh his recollection. Then came the questions and answers on which assigned error 50 is based:
In the same connection, having testified that as soon as his father’s frame of mind was restored he had hoped to do something with him, but had not succeeded, Douglas was asked, “About this time were you convinced that you must either find an independent means of support for yourself and your wife or separate from her?” to which he replied, “The question had not come up for my consideration.” The point argued was not raised by the objection, which was merely that the question was immaterial. It is apparent on the fact of the question that an affirmative answer would have been material. The answer was in effect a denial of the fact called for. For either of these reasons the exception, which is assigned error 53, must be overruled.
Assigned error 86 questions the admissibility of evidence of a statement made by L. E. Woodhouse some time in October, 1921, to the effect that he had nothing more to do with Douglas, that he had disinherited him on account of his escapade with the plaintiff, but that he hoped he might be reinstated in the family at some future time. The objection taken that the evidence was immaterial is the principal ground of the claimed error. It is argued that disinheritance on account of a marriage not approved is a right of the parents. While that may be so as an abstract proposition, disinheritance for the mali
The remaining assignment of error in this group was to the admission of the following question and answer in Douglas’ deposition: “Q. Did you feel forced to take a position in favor of one and against the other? A. The same position I always had.” They come at the close of testimony relating to his mother’s treatment of the plaintiff in Douglas’ presence when sick at the hospital. He had testified in this connection that his mother came into the room in the hospital where he and the pla.intiff were, and that, upon seeing the plaintiff there at his bedside, she turned her back on the plaintiff and abruptly left the room without speaking to her; that he did not feel offended at his mother’s conduct; that it made an impression of annoyance upon his mind; that it was apparent to him there was hostility between his mother and the plaintiff — that there was no peace between them; and that his annoyance was directed against both of them. Then followed the question which was objected to as immaterial and incompetent. It is urged that at most the mother’s act was the exercise of her lawful right not to recognize the plaintiff, and that its effect on Douglas was immaterial. Enough has already been said respecting the test to be applied to the conduct of parents in such circumstances to show that the mother’s action and its effect upon Douglas had an important bearing on the issues in the case. It follows that the objection was not well taken.
Numerous exceptions are grouped as “specimens
Another letter from Douglas was produced for the purpose of showing his affection for the plaintiff. It made reference to congratulations extended to both of them by a person named in the letter. Referring to this part of the letter, the plaintiff was asked what, if anything, occurred with reference to the engagement about the date of the letter. Testimony that the engagement was announced to the person named in the letter was admitted against the objection that it was immaterial unless the defendants knew about it. Several answers to the-objection could be given, but it is enough that the evidence was material to a complete understanding of matters contained in the letter. Besides, Douglas had testified to the same thing in his deposition, which came in without objection.
The plaintiff had testified about Douglas’ trip to Florida with his parents after his recovery from the sickness at the hospital, leaving her alone at Long Branch; and that later while Douglas was in Florida she went to Louisville, Kentucky. Testimony that she went there to take care of some cousins who were suffering from’ influenza and pneumonia was admitted against the general objection that it was immaterial. However,
Defendants treat assigned errors 63 and 95 toL gether. The former relates to the admission of testimony by Douglas that he was not in Burlington at the time of the meeting of the directors of the Merchants National Bank in September, 1920. No objection to this evidence was specified; and the exception is merely referred to which is not adequate briefing. The exception which is assigned error 95 was taken in the following circumstances: The plaintiff undertook to prove interference by defendant L. E. Woodhouse with her credit at F. D. Abernethy’s store where she had run an account on Douglas’ credit. During plaintiff’s examination of witness Hill, his attention was called to the record of a meeting of the directors of the Merchants National Bank on September 22,1920, whereupon a discussion ensued as to the purpose of the inquiry. Plaintiff’s counsel made an offer to show that defendant L. E. Woodhouse and F. D. Abernethy were present at the meeting; that Douglas was not then in Burlington, and it was not known where he was; that follow-, ing the meeting the plaintiff was notified that her credit at Abernethy’s for clothing was terminated — that she could not get any more clothing there on the credit of her husband. This was offered in connection with evidence that Douglas had not then notified any merchant not to trust the plaintiff as tending to show interference by defendant L. E. Woodhouse with plaintiff’s living. The offer was objected to as having no tendency to prove what was claimed for it. The ruling of the court was, “We will receive this evidence on the offer that is made and defendants may have an exception noted.” At this time no question was pending. Witness was then asked whether L. E. Woodhouse and F. D. Abernethy were present at the meeting of the directors September 22, 1920, whereupon counsel for defendants said: “We desire our objection and exception noted to this.” Without directing that an exception be noted the court admitted the answer, “the full board was present.” By a question not objected to the witness testified that both persons named were, members of the board of directors and were both
The plaintiff testified she was notified about the 24th or 25th of September that her credit at the Abernethy store was cut off. Defendants’ evidence tended to show that no such notice was given, and not that there was any other reason for the action than that claimed by the plaintiff. Considering all the circumstances, we are unable to say there was no logical connection between the evidence objected to and the termination of plaintiff’s credit, which, so far as it relates to the-pending question, must be assumed. The sudden and unexplained termination of a credit which had so recently been approved strongly indicated interference by someone. The evidence excluded Douglas, the only one who would naturally be interested. There was ample evidence of motive on the part of the defendants, and especially defendant L. E. Woodhouse. The evidence in question was merely evidence of opportunity. Counsel argue as though the correctness of the ruling depended upon the claim that proof of opportunity to ask Mr. Abernethy to cut off the credit was all that was needed to support the inference that this was done by the defendant L. E. Woodhouse. However, that is only one, and possibly not an indispensable circumstance tending to prove the ultimate fact. The plaintiff was forced to depend wholly upon circumstantial evidence to establish who it was that interfered with her credit. The rule respecting the admissibility of such evidence is thus stated in State v. Ryder, 80 Vt. 422, 426, 68 Atl. 652, 654: “Proving' things by circumstantial evidence is a process of imperfect induction, by which, from the known we infer and find the unknown. But circumstantial evidentiary facts are too various to admit of enumeration, for they are as changeful as the events out of which they •grow. They cannot be comprehended within any rule, nor brought under any classification. Great latitude is allowed in their reception, and everything that tends to connect the supposed evidentiary fact with the factum, probandum, is admissible to prove that fact. ’ ’ Applying this test to the evidence excepted to, there should seem to be little doubt that it was properly admitted. See Barney’s Admx. v. Quaker Oats Co., 85 Vt. 372, 384, 82 Atl. 113.
Certain exceptions argued were taken to the admission of evidence of the wealth of defendant L. E. Woodhouse.
The principal objection to the admission of the evidence respecting the wealth of L. E. Woodhouse offered as bearing upon the question of exemplary damages was in substance this: With evidence of the wealth' of defendant Mary Woodhouse in the case, it would not be permissible to show that L. E. Woodhouse was worth a larger sum. Stated briefly, the defendants’ claim was that, in a case where there are two or more defendants, evidence of wéalth offered upon the question of exemplary damages is limited to showing the wealth of the one who has the least. With certain minor differences, which for practical purposes are unimportant, the assignments of error in this group present the same question. Assigned error 104 is the only one requiring separate treatment. It is clear that this exception does not present reversible error. It is based on an objection addressed to the order of proof, which is a discretionary matter. Besides, the evidence admitted under the exception was manifestly harmless.
At the close of a somewhat lengthy discussion, the court announced the rule under which the evidence of the wealth of L. E. Woodhouse was admitted on the question of exemplary damages. As received it was limited in its application to a possible verdict against L. E. Woodhouse alone. The rule was adhered to throughout the trial, and in the charge the jury were carefully instructed with reference to the matter. The funda-' mental question is whether the court erred in receiving evidence of the greater wealth of L. E. Woodhouse to be used only in assessing exemplary damages in ease the verdict should be against him alone. Objections that the foundation had not then been laid for receiving such evidence went to the order of proof, and are not now important, for later, at least, the evidence made a ease for the jury on the question of exemplary damages. We are not aware that the precise question has before arisen in this jurisdiction. In fact our attention is not called to any case in other jurisdictions precisely in point. Washington Gaslight Co. v. Lansdon, 172 U. S. 534, 43 L. ed. 543, 19 Sup. Ct. 296, is the ease most relied upon by the defendants and is doubtless a leading case on the question there decided, viz.: That, as the verdict must be for one sum against all the defendants who are guilty, when a plaintiff voluntarily sues several parties as de
Clark v. Newsam, 1 Exch. 130, is frequently cited. There Pollock, C. B., speaking of a case where one of several defendants was not liable for punitive damages, says: “It is difficult to say that there are no cases in which the motives of the parties (two or more defendants) would be important, still I think it would be very unjust to make the malignant motives of one party a ground of aggravation of damages against the other party who was altogether free from any improper motive. In such ease the plaintiff ought to select the party against whom he means to get aggravated damages. ’ ’■ Some courts have given this and similar observations a different meaning than we attach to them, as the cases are cited by them to the proposition that the wealth or financial standing of one defendant cannot be shown for the purpose of augmenting damages against him, because the admission of such evidence necessarily has the effect of improperly augmenting the damages against the other de
The argument in these cases is faulty, in that it assumes that the admission of evidence on the question of exemplary damages against one of the defendants necessarily has the effect indicated. It has such effect only when there is a verdict against both defendants, assessed on the basis of the ability of the most wealthy defendant to pay. It will be found that the rule generally adopted is no broader than the evil to be prevented. When Schafer v. Ostmann, supra, was retried, one of the- defendants was discharged during the course of the trial. In an opinion sustaining the judgment against the remaining défendant, it was said that it was proper to take into consideration his financial condition in assessing exemplary damages. In Gagen v. Dawley, 162 Wis. 152, 155 N. W. 930, the evidence of financial condition of one of several defendants was received generally on the question of exemplary damages. Subsequently the jury were instructed that exemplary damages could not be recovered against that defendant, and they were directed to disregard the evidence of his wealth. It was held that the admission of the evidence was not reversible error.
The controlling principle is. tersely but comprehensively stated in Weir v. McEwan, 94 N. J. Law, 92, 109 Atl. 355: “The rule is that only such damages for which they are jointly liable can be recovered from joint tort-feasors by a joint verdict.” It is said in Toledo W. & W. R. Co. v. Smith, 57 Ill. 517, that, when the plaintiff 'is entitled to exemplary damages by reason of the conduct of the defendants, the pecuniary ability of one defendant should not be considered by the jury in determining the damáges to be assessed jointly. To the same effect are Chicago City Ry. Co. v. Henry, 62 Ill. 142; Sugar Mfg. Co. v. Bryant, 105 Va. 403, 420, 54 S. E. 320.
Lombard v. Batchelder, 58 Vt. 558, 5 Atl. 511, and Moore v. Duke, 84 Vt. 401, 80 Atl. 194, are said to .decide the precise point; but such is not the fact, though they are somewhat analogous. The only question in the former ease was whether exemplary damages were recoverable against husband and wife in an action agáinst them for the malicious trespass of the wife,
Plaintiff argues that actions for alienation in which the parents of the alienated spouse are joined as defendants are an exceptional class with respect to exemplary damages because of'the relationship of the property of each upon the-social status of the other. If it were a mere question of social status there would be some force in the argument; but the primary purpose
It seems clear that the true rule is that, when the action is against several defendants, the financial condition of one cannot be used as a basis for determining the amount of exemplary damages against any other, unless that one is the least wealthy of all; but that evidence of the financial condition of the individual defendants may be admitted to be used only against the particular defendant in case the verdict is against him alone. There is no peculiar difficulty in applying to the situation here the ordinary rule respecting the admission of evidence to be used against a single defendant in actions where the liability is severable. While we find no case directly in point, we think this is the logical result of analogous decisions.
The claim is made that the evidence of the wealth of the individual defendants was outside the issue and so inadmissible under the rule that the relevancy of the evidence is governed by the issues made by the pleadings. It is argued that the plaintiff is bound to proceed with the cause according to the pleadings, in other words, upon the theory of joint liability ; and that to receive evidence contrary to this theory would be a departure from the issue and permit the plaintiff to take inconsistent positions. The claim is clearly untenable. Mr. Chitty says that where in point of law several persons may be guilty of the same offense, the joinder of more persons than were liable in a personal or mixed action in form ex delicto constitutes no objection, and one of them may be acquitted and a verdict taken against the others. On the other hand, if several persons jointly commit a tort, the plaintiff in general has his
Under several assignments of - error the defendants complain of the method pursued in introducing the evidence of the financial condition of L. E. Woodhouse. Some of this group of exceptions are not sufficiently briefed to require attention, but we have examined all the matters complained of and find no error in the procedure. On the question of exemplary damages, it was incumbent upon the plaintiff to show the actual means of the defendants. Rea v. Harrington, 58 Vt. 181, 188, 2 Atl. 475, 56 A. R. 561. She was compelled to resort to the course that is criticized largely on account of the attitude of the defendants themselves. A reading of the transcript shows that the long and tedious cross-examination conducted to develop the essential fact was in no small measure the result of the defendants’ obstructive tactics. In the circumstances we cannot ■say that the court exceeded the bounds of judicial discretion in permitting the inquiry to take the scope it did.
In another group of exceptions the defendants allege error in getting prejudicial matter before the jury through improper questions. It is a short answer to these assignments of error that the inquiries were properly in the form of cross-examination. As framed, affirmative answers would adduce evi
The last group of exceptions to the evidence comprises assigned error 160. They relate to objection to a hypothetical question asked Dr. Beecher as an expert medical witness. He had testified to having treated the plaintiff in June, 1920; that he found a condition of extreme nervousness and mental depression; and that he could find no physical reason for her condition. After stating the facts to be assumed, the examiner asked the witness for his opinion respecting the cause of the plaintiff’s condition in view of his examination and what he had stated in respect thereto. Witness answered that the stress and mental worry which plaintiff had been feeling were sufficient to occasion the condition from which he found her suffering. One fact recited in the question was that Douglas went to the Canadian woods from the home of his parents and that plaintiff did not see him again until she found him on the streets of Washington with another woman four months thereafter. Another was
The sole purpose of the inquiry was to account for the nervous and mental condition of the plaintiff at the time in question. Whether such condition would enter into the assessment of damages would of course depend upon whether the causal connection with the alienation was made out to the satisfaction of the jury. Whether the defendants would be liable therefore would depend upon its being found that they were guilty of the alienation, and that plaintiff’s suffering was the natural and probable result thereof. There was evidence, as we have already seen, making these questions of fact for the jury, which sufficiently answers the objection to the evidence. Other claims in the brief were not made below, and so are not for consideration.
Exceptions to Argument
Plaintiff’s counsel in his opening argument was discussing the hospital episode in which the defendant Mary Wood-house abruptly turned and left the room when she caught sight of the plaintiff at Douglas’ bedside and was commenting that what occurred did not stand upon the testimony of the plaintiff against the defendant. The argument continued: “You have the testimony of that sick boy who got the full force of that blow, got the significance of it, who realized then that back of this snubbing was a history of cold and unnatural indifference to this girl throughout their entire courtship and at the time of the marriage that gave point, that gave force and effect upon his mind and his heart to her wheeling about and leaving him and his wife there, and it told him as plainly as could be that the reason she did it was because his-wife was there and because his wife was not a person that she cared to know.” The exception taken was to the argument of acts and conduct prior to the hospital incident as cold and unnatural, “that being a claim abandoned by the plaintiff early in the case.”
Defendants claim that the whole issue of hostility before the marriage was withdrawn by plaintiff’s counsel in connection
The following incident occurred in the closing argument for plaintiff: Counsel was speaking of what appeared in Dr. Slocüm’s deposition relating to the abortion, which had been developed during the defendants’ cross-examination of the wit
Under this general topic the defendants argue assigned error 171. This was an exception taken to the overruling of their motion for a mistrial, made at the close of the final argument, on the ground of misconduct of those in the audience in applauding at the dose of the argument. The court had administered a sharp rebuke and ordered the court room cleared. It is evident that the matter was dealt with as completely and severely as was possible. While deprecating the affair, the court stated they were not prepared to say that it was prejudicial to the defendants, and denied the motion. This matter was also relied upon as a ground for setting the verdict aside. The question is briefed on this exception only by reference to the brief on the latter motion. The point can more properly be considered when the motion to set the verdict aside is reached.
Exceptions to the 'Charge
The defendants made 47 requests to charge, and claim error in the refusal of all but nine of them, briefing each request separately. During the taking of exceptions to the charge, the court had before it the requests in writing. In excepting, the requests were referred to by number, and were followed by the court as they were referred to. The claim is made that the exceptions to the failure to comply with certain of the requests are under the rule too general to be available. The first 25 requests in varying form are directed to the claimed failure of the evidence to support the allegations of the declaration. In taking the exceptions, counsel said, referring to these requests: “What I wanted there was this — those are numerous — I don’t think it is necessary to read them, but I except as to each one from the first down to and including the 25th. Those are really each one put up in different -forms asking the court to charge out certain propositions as not supported by the evidence. Also an exception to the non-compliance with the 26th, 27th, 28th, 29th, 30th, 31st, 32nd, 33rd, 34th.” At this point, according to the record, the court gave a supplemental charge on a matter that had previously been called to its attention, after which the exceptor continued: “Resuming my exception to the charge— going back to the 25th — my exception should be ‘and so far as
It requires no extended argument to show that in the circumstances these exceptions are too general to require attention under-rules with which the profession is entirely familiar. It should be observed that the exceptions were being taken at the close of a lengthy and complicated trial, replete with nice legal questions. The requests were exceedingly numerous and framed to cover every conceivable proposition that the case afforded. Justice to the court required that even unusual pains be taken to point out matters relied upon in the requests which it was claimed had not been adequately covered by the charge, and to indicate wherein the charge as given was claimed to be erroneous. The rule and the reasons therefor are too well known to require more than a reference to some of the recent cases. Wilder v. Hinckley Fibre Co., 97 Vt. 45, 122 Atl. 428; Eastern States Agricultural and Industrial League v. Estate of Vail, 97 Vt. 495, 514, 124 Atl. 568; McAllister v. Benjamin, 96 Vt. 475, 490, 121 Atl. 263; Platt v. Shields & Conant, 96 Vt. 257, 267, 119 Atl. 520; Morgan v. Gould, 96 Vt. 275, 119 Atl. 517; Duprat v. Chesmore, 94 Vt. 218, 110 Atl. 305; Bradley v. Blandin, 94 Vt. 243, 110 Atl. 309. However, we have not omitted to examine the requests with the charge to be satisfied that no reversible error had been committed. Many of the requests do not require separate treatment, as they raise the same questions that are raised by the motion for a directed verdict and would be disposed of by what has already been said on that subject. The charge adequately stated the law of the case, and, on the points covered by the requests, was as favorable to the defendants as they were entitled to.
In connection with exceptions to the charge as given de
Commenting upon the charge, .one of defendants’ counsel said: “I cannot quote the court exactly but this proposition appeared twice and left it to the jury to make their own rule as to what is a proper inference to be drawn from a given fact * * * ‘you may draw any inference you may consider just’.” Strictly this does not amount to an exception to the charge. But if it were to be so considered, it could not be sustained, for the court nowhere told the jury, in fact or in effect, what the objection indicates. See McAllister v. Benjamin, 96 Vt. 475, 489, 121 Atl. 263. The charge on the subject was full and in all other respects satisfactory to the defendants. The point specially stressed in the brief that the court did not tell the jury what facts, if proved, would justify certain inferences was not indicated with sufficient definiteness in the objection to make the point available. Morgan v. Gould, 96 Vt. 275, 279, 119 Atl. 517; Eastern States Agricultural and Industrial League v. Estate of Vail, 97 Vt. 495, 514, 124 Atl. 568.
An exception was taken “to that part of the charge that she may now recover once for all and for all damages.” The reason assigned for the exception was that it ‘ ‘ overlooks the fact that she was then and is now drawing alimony from her husband.” The part of the charge to which this exception was directed related to damages for loss of consortium, and particularly to the part concerning the question of prospective damages for such loss. The jury were told that in the event of a recovery the plaintiff was not limited to damages for loss of consortium up to the time of the trial, but would be entitled to damages also for such future loss of consortium as they found she would sustain. It is not claimed that the charge given was incorrect. It is argued that loss of support was one of the elements for which plaintiff recovered; that such loss would be mitigated by the fact that she was receiving alimony from her husband; and that the jury were nowhere instructed in the charge that liability for loss of support might be so mitigated.
If it should be admitted that on a proper showing the dam
In taking a further exception to the charge, counsel said: “The court’s charge was that if the jury believed the acts of the defendants were the controlling cause that would entitle her to a recovery and that does not discriminate as between the malicious acts and those which the defendants had a right to do, not illegal acts and permissive acts where malice overturns, and we think the charge' on the whole holds the defendants responsible for acts which they had a legal right to do if they were done with ill will.” The part of the charge referred to related to the issue whether the acts of the defendants, or either of them, caused the alienation. It was claimed that plaintiff’s loss of consortium was due to her own fault. The language employed was appropriate to this issue and correctly stated the rule of law applicable to the situation. It is not a valid objection that this particular part of the charge did not discriminate between malicious acts and those which the defendants had a right to do. The only force to the objection, if any, is in the proposition that the charge as a whole made the defendants responsible for acts which they had a legal right to do. This is not a just criticism of the whole charge. It very carefully pointed out the peculiar rights of parents, so far as concerns the marital relations of their child, and laid down the principles governing liability for alienation of the child’s affections in substantial compliance with the rules already announced in this opinion. The jury could not possibly have understood as now argued that they were at liberty to find against the defendants if their conduct was the controlling cause of the
The exception “to the suggestion that they (the defendants) may have used influence without physical presence” as not applicable to the evidence in the ease does not merit more than passing notice. The “suggestion” was made in connection with the part of the charge just referred to as follows: “The actual presence of the defendants, or either of them, during the process of the alienation is not necessary to be shown. It is enough, as I have said, that they or either of them had a controlling cause in producing it and such influence may have been exerted without their presence.” That this is a correct rule of law is not questioned; nor could it well be. Townsend v. Townsend, 84 Vt. 315, 320, 79 Atl. 388. The objection that it was merely the statement of an abstract principle of law, if tenable, avails nothing. Unlike the cases cited, it introduced no issue outside the evidence and at most would be harmless error.
The exception “to the statement of the court that the case contains circumstances from which wrongful acts could be inferred, as not applicable to this case” presents a question already considered in connection with the motion for a directed verdict.
The jury returned, a verdict for the plaintiff. They assessed the compensatory damages at $400,000 and allowed $65,000 exemplary damages. The defendants moved to set the verdict aside, assigning as general grounds (1) that the verdict was excessive, against the evidence,, and unsupported by any evidence; (2) that the jury misconceived the law given them by the court and neglected, failed, and refused to follow the law as given; (3) that the jury failed to base the damages upon the evidence and failed to consider the evidence in mitigation of damages; (4) that the verdict was governed by, based upon, and influenced by bias, passion, and prejudice. The motion specifies with particularity, under these general grounds, very many reasons why the verdict should be set aside. Among these were claims that plaintiff’s counsel transcended the limits of legitimate argument and appealed to the passions and prejudices of the jury; that the charge failed adequately to caution the jury against the influence of the argument of plaintiff’s counsel calculated to excite passion and prejudice; that from the inception of the suit, the community was intensely partisan in favor of the plaintiff and crowded the court room at nearly all times, by reason of which the jury, both in and out of the court room, were subjected to an atmosphere of hostility to the defendants and their cause and of sympathy for the plaintiff; that the jury were improperly influenced by the wealth of the defendants, especially of the defendant L. E. Woodhouse; that popular approval of the sentiments of plaintiff’s attorney was. emphatically expressed by the audience to the jury in the presence of the court, particularly by an outburst of applause at the close of his final argument.
The court found in their finding of facts, made part of the record that there was no bias, passion, or prejudice which entered into the verdict, and state therein, that, in reaching this conclusion, they had considered all of the circumstances and incidents of the trial, including the .amount of the verdict and the questions asked by the jury upon their return for instructions. The court disposed of this phase of the motion by saying: ‘ ‘ So far, then, as this motion proceeds upon the ground that- the verdict is the result of passion and prejudice, it is denied.” Passing to the question whether the verdict was against the evidence,
Taking up the question whether the finding as to damages was open to the foregoing objections, the court stated the rules governing such questions, including the rule that, in order to justify the granting of the motion, it must appear that the award of damages is grossly out of proportion to the evidence of the injuries sustained, and that there is no reasonable basis therein for the finding of the jury upon the subject of damages. The evidence on the question of damages was viewed somewhat in detail in connection with defendants’ claims with reference thereto. The conclusion reached was that the verdict, both as to compensatory and exemplary damages, was excessive. The language of the finding follows: “We clearly see that the sum of $465,000 is grossly in excess of what the jury might reasonably award in this case. As we stated, we do not find this verdict is the result of passion, prejudice, bias or any improper motive. But we do consider that the jury have mistakenly allowed a sum which is much greater than that which is warranted by the evidence upon this subject.”
The defendants insisted that the verdict should be set aside and a new trial granted — that a remittitur should not be ordered. However, the court found that the sum of $100,000 compensatory damages was reasonable and not excessive, and the minimum sum which the jury, under a proper view of the evidence and the law, could reasonably be expected to allow; and that in regard to punitive damages, $25,000 was such a sum. The plaintiff was given a limited time within which to remit the excess of the verdict, over and above the sums named, whereupon the motion to set the verdict aside was to be overruled. The alternative order was that the verdict should be set aside and a new trial granted on the question of damages only. The defendants excepted generally, on the ground that they were entitled to have the verdict set aside and a new trial granted^ and specially on 29 distinct grounds of claimed error, all of which, save one, are separately argued in their brief. The plaintiff exercised the option of filing the remittitur, whereupon judgment was entered against both defendants for $125,000 damages to which
The really vital question raised by these exceptions is whether the disposal of the motion resulted from the court’s failure to exercise the discretion invoked or was in legal contemplation an abuse of discretion. In substance the claims are these: That the court neglected to consider certain circumstances bearing on the question of whether the verdict was the result of passion and prejudice; that by the circumstances in fact considered it conclusively appeared that the' verdict was thus tainted and should be set aside; and it being found that the amount of the verdict was grossly excessive, that there was no proper basis for determining the sums to which it was ordered the damages should be reduced to avoid setting aside the verdict. Some incidental questions are argued, but the substantial grounds of complaint are embraced within these claims. As the questions arise on exceptions to the findings and rulings of the court below, the scope of the inquiry is limited to a review of claimed legal errors, and we are bound to indulge every reasonable presumption in support of the action of the trial court.
By several exceptions to the findings, the defendants assert that the court failed to consider, among other things, argument of plaintiff’s counsel of an objectionable character, though not excepted to, which in its nature was calculated to arouse the sympathy of the jury and to excite their passions and prejudices. The claimed omission is based upon the reference in the findings to the fact that some of the argument was not objected to, coupled with the statement that, so far as their objections were not sustained, the defendants were protected by their exceptions, and that, in regard to such portions as were not objected to, the objection came too late. It is doubtless the rule that the absence of an exception to prejudicial argument prevents the raising of the issue of its impropriety as a matter of law. However, this does not deprive such argument of evidentiary value upon the issues raised by the motion to set the verdict aside. Moulton v. Langley, 81 N. Y. 138, 124 Atl. 70. It was the duty of the court to consider the probable effect of inflammatory argument, if such there was, together with all the other circumstances of the trial tending to account for the size •of the verdict, and particularly such as bore upon the question
Other exceptions are directed to the proposition that the court erred in holding the verdict was not the result of bias, passion, or prejudice. The defendants recognize that the motion to set the verdict aside was addressed to the legal discretion of the trial court and that its action is only reviewable for failure to exercise such discretion, or for what amounts in law to abuse of discretion. Sharby v. Town of Fletcher, 98 Vt. 273, 127 Atl. 300; Platt, Admx. v. Shields & Conant, 96 Vt. 257, 270, 119 Atl. 520; Dyer v. Lalor, 94 Vt. 103, 114, 109 Atl. 30. These exceptions being addressed to a finding of fact by the court below, the question presented is not how we might regard the fact to be on a review of the evidence; but to justify this Court in sustaining such exceptions, it must appear to us, from the record, that there is no reasonable basis therein for the finding. Platt, Admx. v. Shields & Conant, supra, at p. 272. Besides, it should not be overlooked that the trial court is in better position to determine the question, so that its determination should ordinarily be accepted. See Gila Valley, etc., R. R. Co. v. Hall, 232 U. S. 94, 58 L. ed. 521, 526, 34 Sup. Ct. 229.
Defendants advance the claim that passion and prejudice are conclusively shown by the size of the verdict alone. But we are not convinced that this is necessarily so. There have been eases where the verdict was so grossly out of proportion to the injury that, looking to all the circumstances, it could not be accounted for otherwise than as the result of passion and prejudice. It has been said that an. excessively large verdict, in the absence of any other explanation, may be treated as prima facie evidence that the jury was not unprejudiced, fair, and
We think it cannot be said that the record discloses no reasonable basis for the finding that the verdict was not the result of passion and prejudice. It is true, as pointed out by the defendants, that the verdict exceeds the total of thirty-nine verdicts rendered in actions of this nature during the past twenty-five years that have been attacked for excessiveness. This fact, as the court below well said, is worthy of serious consideration; but it is not conclusive. Each case must stand upon its own facts, and the evidence in this case, bearing on the question of damages, clearly places it in a class by itself. Plaintiff and her husband were in the prime of life, and, but for the alienation, there was every reasonable prospect of many years of marital happiness. Her husband was possessed of an independent fortune at the time of the alienation, amounting, at least, to $75,000. He was a man of culture, a graduate of ■ Columbia Law School, and had had several years’ experience in banking. The principal item of the damage, which the jury were required to estimate, was how much would make the plaintiff whole for the permanent loss of consortium in such circumstances. It is not unlikely that they arrived at the sum awarded for compensatory damages by capitalizing what they regarded as the annual loss at some low rate of interest and adding thereto such sums as they allowed for other elements of damage. This seems probable from the fact that plaintiff’s counsel argued along that line.
In the discussion of this phase of the motion, the court observed that, if the verdict was the result of bias, passion, or prejudice, the defendants would be entitled to a new trial, as a matter of right, adding, “the burden is upon the defendants to show that it was so influenced.” The defendants brief an exception taken to the quoted part of the statement. The question is of no practical importance in the circumstances of this case. The finding is not based upon any presumption or the lack of evidence, but upon consideration of all the circumstances and incidents of the trial. The court considered each circumstance relied upon as improperly influencing the jury, such as the amount of the ad damnum, the argument of counsel, the manifestations of sympathy on the part of the spectators, the outburst of applause at the close of the final argument, and stated, in effect, that they found no reason to believe that the jury were influenced thereby, or by any motive except a conscientious desire to decide the ease upon the evidence.
When considering the effect of the applause by the spectators, the court stated the rule of law governing such a situation to be that a demonstration of spectators in a court room is not sufficient reason for granting a new trial, unless it appears that the rights of the parties were prejudiced thereby.
We come to the question whether the court erred in overruling the motion to set the verdict aside upon condition that the plaintiff should remit the part thereof found to be excessive. On this question the defendants are forced to rely upon the claim that the court’s action was an abuse of discretion. We can most profitably consider at the outset, what our practice permits by way of the reduction of excessive verdicts in cases of this character. One phase of the question has recently been before the Court in Smith v. Martin, 93 Vt. 111, 106 Atl. 666. That was an action of tort for deceit in the sale of certain shares of the capital stock of a corporation. The defendant brought up an exception to the action of the trial court in denying his motion to set the verdict aside on the ground that the' damages were excessive. The question considered was whether the refusal of the motion was a proper exercise of judicial disr cretion. The conclusion reached from an examination of the evidence bearing upon the question of damages was that a manifest injustice would result, if the verdict was allowed to stand. The rule of damages in the case was the difference between the actual value of the stock and its value as represented. The verdict was for $4,398.90 damages, while it appeared by mathematical calculation, based on the evidence most favorable to the plaintiff, that the difference in value did not exceed $1,400.00. Speaking of the power of the trial court to grant a remittitur in such circumstances, it was said that the thing to be guarded against was the danger of injustice to the defendant by forcing upon- him an excessive judgment, when the excess in the verdict could not be accurately determined. It was pointed out that that danger could be avoided by fixing the amount, on the acceptance
In those cases where there is no legal measure of damages, and they are unliquidated so the amount thereof is referred to the judgment and legal discretion of the jury, the court ordinarily will not interfere with their verdict, unless it clearly appears that the damages found are excessive or insufficient. Although the verdict may be considerably more or less than, in the judgment of the court, it ought to have been, still it will decline to interfere unless the amount is so great or small as to indicate that it is the result of perverted judgment, accident, or gross mistake. When the verdict is thus excessive or deficient, the court will not hesitate to exercise its discretion to interfere. 2 Sutherland on Dam. § 459. It has been said that courts have been reluctant to reduce even excessive verdicts in .actions for alienation of affections because of the lack of any rational basis upon which to fix the proper amount. Phillips v. Thomas, 70 Wash. 533, 127 Pac. 97, 42 L. R. A. (N. S.) 582, Ann. Cas. 1914B, 800. See, also, note L. R. A. 1915F, 30, 34.
The view that the trial court may not allow remittiturs where there is no basis of computation obtains in some jurisdictions. It is the modern doctrine in England where the contrary view prevailed before the decision in Watt v. Watt, 1905 A. C. 115, 2 Ann. Cas. 672; and is still adhered to in some jurisdictions in this country, including Colorado, Georgia, Kentucky; South Dakota, and West Virginia. But the tendency of the late decisions of the courts of the other states is in the direction of unqualified support of the practice which allows both the trial and appellate courts, in cases where the plaintiff is entitled to substantial damages and excessive damages have been awarded, to indicate the excess and give him the option to remit and take judgment for the residue or submit to a new trial, regardless of whether the excess is capable of computation or not. This prac
The question was re-examined at length in the Mann case, an action of trover, in which the trial court had overruled a motion for a new trial upon the condition, accepted by the plaintiff, that nearly two-thirds of a large verdict should be remitted. Mr. Justice TIarlan • delivered the unanimous opinion of the Court. After reviewing the cases he said: ‘ ‘ The practice which this court approved in Northern Pac. R. R. Co. v. Herbert [116 U. S. 642, 29 L. ed. 755, 6 Sup. Ct. 590], is sustained by sound reason and does not, in any just sense, impair the constitutional right of trial by jury. It cannot be disputed that the court is within the limits of its authority when it sets aside the verdict of the jury and grants a new trial where the damages are palpably or outrageously excessive. [Cases cited.] But, in considering whether a new trial should be granted upon that ground, the court necessarily determines, in its own mind, whether a verdict for a given amount would be liable to the objection that it is excessive. The authority of the court to determine whether the damages are excessive implies authority to determine when they are not of that character. To. indicate, before passing upon the motion for a new trial, its opinion that the damages are excessive, and to require a plaintiff to submit to a new trial, unless, by re
The trial court having found that the verdict was so excessive as to require its interference, and that it was not the result of- passion or prejudice, it was a proper case for the correction of the verdict by remittitur. Whether its action should be upheld on review leads to the further question whether the sums to which the damages were remitted were still excessive or, stated more exactly, were so excessive as to justify the interference of this Court. This involves, as we have seen, the question of abuse of discretion. In such actions, what would be reasonable damages is necessarily a matter of judgment to be estimated from all the facts and circumstances in the case. Capital Garage Company v. Powell, 98 Vt. 303, 127 Atl. 375. The rule as to what amount should be remitted to avoid a retrial because of an excessive verdict in cases where there is no definite measure or standard for fixing the amount of damages, has been variously stated: “The basis of the action of the court, in this respect, will be to place the sum at such a figure as, in every reasonable probability, any future jury, rightly instructed as to the law and, with the proper conception of duty, would be liable to award.” Willette v. Rhinelander P. Co., 145 Wis. 537, 130 N. W. 853. “The amount remitted shall be large enough to strip the verdict of any prejudicial elements, giving the defendant the benefit of reasonable probabilities in respect to the amount of the recovery, so that it shall clearly be regarded as not excessive.” St. Louis, etc., R. R. Co. v. Brown, 100 Ark. 107, 140 S. W. 279; 2 Sutherland on Dam. § 460, p. 1512. “The largest amount which, in the court’s judgment, would not be excessive.” Canfield v. Chicago, etc., R. R. Co., 142 Iowa 685, 121 N. W.
Should this Court, in the exercise of its revisory powei', reverse the action of the trial court in disposing of the motion to set the verdict aside? Admittedly not, unless abuse of discretion is shown by the record. As to this, the recognized test is whether the discretion of the court has been exercised on grounds or for reasons clearly untenable, or to an extent clearly unreasonable. Dyer v. Lalor, 94 Vt. 103, 116, 109 Atl. 30; New England Box Co. v. Tibbetts, 94 Vt. 285, 290, 110 Atl. 434. The ultimate question being whether the sums fixed by the court to which the damages have been reduced were themselves excessive, the rule applies that this Court will interfere only when the award of the lower court is manifestly and grossly excessive. Platt, Admr. v. Shields & Conant, 96 Vt. 257, 270, 119 Atl. 520. This principle has been applied where the question was like that in the case at bar. It is said in Pensacola Sanitarium v. Wilkins, 68 Fla. 447, 67 So. 124, that, where a remittitur has been alloAved, a judgment will not be reversed for excessiveness not clearly apparent; again, in Detzur v. B. Stroh Brewing Co., 119 Mich. 282, 77 N. W. 948, 44 L. R. A. 500, that it has always been a matter of discretion to grant a portion of the relief agked by requiring a remission of a portion of the verdict as a condition upon which the new trial will be denied; and that, where it is not clearly erroneous, the action of the trial court will not be disturbed.
We note, in passing, certain claims respecting the allowance of exemplary damages. An exception was taken to the order of the court permitting the verdict to stand to the
Upon consideration of all the evidence bearing on the question of damages, we are not satisfied with the certainty contemplated by our rule that the action of the court on the motion to set the verdict aside w^s not a proper exercise of its discretion. None of the exceptions to this point can be sustained.
The record in this case is unusual for its length and the number of exceptions taken at the trial. It has not been found possible to treat them all within the reasonable limits of an opinion. We have carefully reviewed all of the assignments of error that are briefed, and have discussed as many of them as seemed to require special attention. No reversible error is found in the record of the trial. It remains to consider the petition for a new trial, which is an original petition to this Court.
Petition eor a New Trial
The ground of the petition for a new trial is the misconduct of certain jurymen in talking about the case during the trial in violation of their oath as jurors. It is alleged as the chief ground of complaint that after the ease was partly heard and before the testimony for the defense had been adduced, Burr D. Martin
Among the supporting affidavits appended to the petition are the affidavits of Mrs. Coburn and Mr. Brunell. In substance, the former affirms that during the trial of the Woodhouse case on an occasion some two or three weeks before the end of the trial, the juryman Martin called at her house and visited with her'and her husband, Dr. Coburn, since deceased; that on that occasion Martin “expressed the opinion and confidence that the plaintiff ought to and would recover a large verdict in said cause,” — that she could not state his exact words, “but that was the substance of what he said as to his opinion and expectation.” Brunell states in his affidavit that he was in Burlington on an occasion during the Woodhouse trial and heard some of the evidence ; that he rode to Westford that night with juryman Paige; that he talked to Paige considerably about the ease at intervals most of the way home; that Paige did not say very much; that affiant remembered saying, “I guess she will get her money, won’t she?” To which Paige replied, “I guess so”; that affiant asked Paige how he thought plaintiff appeared on the stand and the latter replied, “Like a lady.” Pursuant to an order of court, testimony in support of the petition and by way of defense was taken before a commissioner as in the form of depositions. The transcript of the proceedings before the commissioner has, by agreement of the parties, been filed in lieu of
A controversy arose before the commissioner respecting the use to be made of the affidavits annexed to the petition. Brunell was being examined as a witness for the defendants. He had testified to being in court on an occasion during the trial and to riding to Westford with juryman Paige after adjournment that day, and that he had conversation with Paige on the way about court affairs, particularly about what happened that day. Continuing the direct examination the following occurred:
“Q. Well, now tell us about that conversation:
A. Why, I asked him if she was going to get her money. Said he didn’t know.
Q. Did he tell you what he thought about it, or anything of that?
A. Not that I remember of.
Q. Said he didn’t know. Was anything else said about it?
A. I asked him how she appeared on the stage, he says like a lady.
Q. Well, about the money. Did he say anything else than that he didn’t know?
A. Not that I recollect.”
Thereupon the examiner showed the witness his affidavit annexed to the petition, and having proved the signature thereto and called attention to certain portions of the affidavit renewed the inquiry as to what Paige said when asked if he thought plaintiff would get her money. The witness then answered: “I asked him if she would get her money and he said, ‘ I guess so ’. ” This procedure was objected to as an improper use of the affidavit and plaintiff’s counsel insists that the testimony elicited thereby should be rejected. It .is admitted in plaintiff’s brief that this is a discretionary matter, but it is urged that where the instrument employed to refresh the recollection is an ex parte affidavit its use enables counsel to suggest the answer desired, and besides defeats the object of taking the evidence by depositions, as it amounts to no more than letting the affidavit be used as testimony. Notwithstanding the petition is addressed to the discretion of the Court, the admission and rejection of evidence upon such a petition must be governed by ordinary legal rules. Woodward v. Leavitt, 107 Mass. 453, 9 A. R. 49. That the use of the affidavit was in the circumstances justified is shown by
A somewhat similar question, was raised during the direct examination of Mrs. Coburn called as a witness by the defendants. Early in the examination her affidavits annexed to the petition were submitted for identification. After showing by the witness that juryman Martin took part in a convei*sation about the case with herself and Dr. Coburn, she was asked to state what that conversation was. At the same time the examiner handed the witness the affidavits, saying, “And for purpose of refreshing your recollection, if you like to, you may look to this paper that I have shown you.” Plaintiff’s counsel objected to this method of examination, claiming that it was not her writing and that counsel had no right in this proceeding to undertake to get witness to repeat what they had put into the paper. In spite of repeated protests, the witness examined the affidavits before answering the question. It must be admitted that no sufficient reason for the use made of the affidavits appeared when they were first shown to the witness; but it soon appeared that she was at least a very reluctant witness. In the circumstances, we think her testimony elicited in connection with the affidavits should not be rejected.
It is the undoubted rule that applications for a new trial on the ground of misconduct of jurors are addressed to the sound discretion of the Court. The inquiry necessarily involves matters of fact, and no general rules can be laid down. The question whether the ends of justice and the purity of jury trials require a new trial to be granted in a particular case must be determined upon its own particular facts. Downer v. Baxter, 30 Vt. 467, 474. It is said in Re Ketchum, 92 Vt. 280, 102 Atl. 1032, that such an application must fail or prevail according to the strength of its appeal to the judgment and conscience of the court; and, in Ryan v. Rooney, 88 Vt. 88, 90 Atl. 891, that the reason for granting a new trial must be collected from the whole evidence and from the nature of the ease considered under ail of its circumstances. Such is the comprehensive scope of the inquiry. > It involves not only the determination of disputed facts, but the presence or absence of probable injury to the defeated party through the misconduct complained of; whether either the parties, their attorneys or their friends were impli
We come to the examination of the evidence bearing upon the issues raised in the petition. In the light of what already appears, it should be seen that the defendants have failed to establish the alleged misconduct of juryman Paige. Theirs is the burden of proof on that issue. The contradictory statements of Brunell are met by the direct and positive denial of Paige, whose testimony is unshaken. In the circumstances, the unsupported testimony of Brunell is not a sufficient basis for a finding of misconduct on the part of this juryman. It is not the satisfactory proof which the law requires. Thrall v. Lincoln, 28 Vt. 356; Flint v. Holman, 82 Vt. 513, 517, 74 Atl. 232; State v. Warm, 92 Vt. 447, 105 Atl. 244, 2 A. L. R. 811.
The testimony respecting the conduct of juryman Martin presents a more doubtful situation. It is evident that Doctor and Mrs. Coburn took an active interest in the case during the trial. They were not acquainted with either of the parties, but manifestly their sympathies were strongly with the plaintiff. Mrs. Coburn’s testimony before the commissioner is to be weighed in the light of this fact. She was a reluctant witness for the defendants, which makes weight for such testimony as she gave favorable to them; but it will be necessary to distinguish carefully between fact and opinion, as the latter may easily, though unconsciously, be affected by her prejudice.
It appears that Mr. Martin and Dr. Coburn were neighbors and intimate friends. Martin had occasion to call at Dr. Coburn’s house twice on business during the Woodhouse trial, the first time early in the trial, and the other about two or three weeks before the trial ended. It was on the latter occasion that it is claimed the alleged misconduct occurred. With reference to the first visit, Martin testified that Dr. Coburn inquired how he happened to get onto the jury, and that he explained how
The occasion of Martin’s second call related to a scholarship in the University of Vermont. In substance,' Martin testifies that the doctor was reading the newspaper when he went in; that Mrs. Coburn was present; that Dr. Cobum said they were just reading the trial and asked how we were getting along; that witness replied that it was coming mighty slow; that the doctor asked if they had got most through; that witness said they had not — that it would probably take two or three weeks longer anyway; that nothing else was said in connection with the Woodhouse ease; that neither the doctor nor Mrs. Coburn
It is somewhat difficult to generalize Mrs. Coburn’s testimony. She testified in direct examination, referring to the occasion of Martin’s second visit, that she and the doctor were talking about the Woodhouse case and that Martin joined in the conversation; that Martin didn’t say so very much, she and the doctor doing the most of the talking. When asked to state what the conversation was after examining her affidavits, she replied: “I cannot do any different than to read it just as it is here,” referring to the affidavits. Though pressed by repeated questions to give the substance of Martin’s statements, she reiterated that she was unable to do so — that she could only state it as it appeared in the affidavit. Asked whether Martin said' anything about the probable verdict, she replied: “I suppose he must have”; but in this connection she testified that Martin did not say right out, “I think she will get a verdict,” or anything of that sort. In answer to one question, she testified she remembered the substance of what Martin said as stated in the affidavit, but, when her testimony is analyzed, the most the defendants succeeded in showing by her was that Martin talked about the matter in such a manner that she gathered the impression that he thought the plaintiff would get a verdict. It was pretty much all summed up in the following questions and answers:
“Q. Without stating any amount, you and Dr. Cobum were talking about whether the verdict would be a good-sized verdict or not, weren’t you?
A. Why, we were talking about it in general, but what we said, I don’t know.
Q. Did'you talk about whether the verdict would be large or small?
A. Why, we probably did, because we naturally think it would be.
Q. Your sympathies were in that direction, weren’t they?
Page 168A. Yes.
Q. And you expressed your view about it?
A. Yes, expect we did.
Q. And the Doctor expressed his views?
A. Why, yes, I think so.
Q. And Mr. Martin expressed his didn’t he?
A. Why, I don’t know that he did right out say anything.
Q. You understood that he agreed with you, didn’t you, from that conversation?
A. Why, we felt from what was said that probably was his opinion.”
Mrs. Coburn testifies, in substance, that nothing was said in the affidavit that is not true. In her cross-examination, she states, in effect, that she did not intend in the affidavit to give anything else but an impression of the effect of the general conversation, and that she might, perhaps, be mistaken in the impression that Martin had formed or expressed any opinion on the merits of the case. In redirect examination, the fact is developed that Mrs. Coburn supposed, when giving her direct testimony, that she would not be permitted to answer in the language of the affidavit. Thereupon she was asked:
”Q. Now can you tell (it) in substantially the language of the affidavit (now) what the conversation was?
A. Like what is in the affidavit?
Q. Yes.
A. Well, he expressed his opinion that she would get a verdict.
Q. What kind of a verdict, large or small ? Tell it in your own language. Tell it in any language, Mrs. Coburn. The language of the affidavit, if that is good enough for you, you are permitted to. You read the affidavit?
A. Yes, I read it so many times —
Q. Well, now let’s have that. Can you state it in any language in substance?
A. Why, I don’t believe I can.
Q. Well, do the best you can.
A. I can’t.
Q. You can’t tell it any different than it is stated here?
A. No.”
Thus it is seen that the defendants have failed to show even the substance of what Martin said. The most they are able to
Judgment affirmed. Petition for new trial dismissed with costs.