Bartlett v. Bartlett

108 N.W. 633, 40 S.D. 544, 1918 S.D. LEXIS 118

• Court: South Dakota Supreme Court
• Decided: July 22, 1918
• Docket: File No. 4276
• Status: Published

Opinion

GATES, J.

Plaintiff and defendant, after haying reared a family of children, became 'divorced. At the time of the divorce, they entered into a written stipulation ¡by which this plaintiff was1 given permission to take from their home certain household - articles. 'Several months thereafter in endeavoring to remove thes'e articles, and some which' defendant denied her right to, she wa-a assaulted iby defendant. This action was brought to recover d'am-•ages ¡therefor. From a judgment for plaintiff in' the sum- of $1,500 and from- an order denying a new: trial, defendant appeals.

Appellant’s- brief 'contains many assignments of error, ¡but only four propositions are ¡argued, viz.: Misconduct of the court; insufficiency of the evidence to sustain the verdict; excessive damages appearing to have been given under the influence of passion or prejudice; and errors in the instructions -to the jury.

[1] But as no exception was saved' to the 'instructions Complained of, that matter is not before us.

[2] In denying the motion of defendant for a directed verdict at ¡the close of plaintiff’s case, the trial court, in the presence of the jury, gave its reasons therefor, which more appropriately should have been stated in ithe absence of the jury. Upon exception being taken, the court -disclaimed any intention -of 'commenting upon the weight of the evidence, instructed the jury to disregard the statement, and expressed! to defendant’s counsel its1 willingness to make any further statement to the jury stoi that the matter might be corrected. 'Without making any -further suggestion, counsel apologized to the -court, and the incident appears to be closed. A-s1 we view -the record, such apology was -clearly intended, and was considered, as a withdrawal of the exceptions. While we are fully aware of the liability icif juro-rs to be influenced' by remarks from the bench, we are unable to say that prejudicial error appears from the record.

[3] Upon the cross-examination of 'defendant, the trial court said:

“Now, Mr. Bartlett, you will please answer the questions as they are asked, and you will d'o it in a decent and respectful way, and if you don’t you will pay some of the expense of this court, and you don’t want to talk hack to the court- either.”

Enough, of the record is disclosed to show the defendant’s attitude upon the witness stand to have been fipp-ant and1 insulting, and t-hat he frequently volunteered matter not -responsive to' questions propounded. Unfortunately, the printed record cannot disclose a phonographic reproduction- of the voice of the witness nor a, photographic reproduction of his manner upon the witness .stand. ■W'e are unable to say from the redord that the trial court abused that judicial discretion that is- committed to' it.

[4] The gist of the cause-of -action was whether -in- attempting to prevent plaintiff from taking the property the defendant used more force than was reasonably necessary under the circumstances. Tire evidence was largely conflicting, but there was sufficient evidence offered on plaintiff’s behalf to justify a submission of the question- to the jury.

[5] There was evidence tending to -show that defendant kicked plaintiff in the back -a number of times; that he dragged her around jhe room, tore -her -dress, bent her .backward! over the kitchen table; that there were bruises on -her body; and that the injuries caused a displacement of the uterus. W'e think there is no basis for appellant’s Contention that the size of the verdict showed pa-ssioir and1 prejudice on the part ¡of the jury.

Tire judgment and order -appealed from are affirmed