Coates v. Slusher

222 P. 311, 109 Or. 612, 1924 Ore. LEXIS 98

• Court: Oregon Supreme Court
• Decided: January 14, 1924
• Status: Published

Opinion

HARRIS, J.

The plaintiff married Grace L. Spencer on July 17, 1910, in Missouri. They had been acquainted since childhood. Three or four years after their marriage the plaintiff and his wife moved to Oklahoma and subsequently they came with their daughter to Oregon.

The Slusher estate owns about 30,000 acres of land in Umatilla County. A considerable portion of this land is wheat land and from fifteen to sixteen thousand acres are grazing lands. We understand from the record that several ranches are included in the 30,000 acres; and, although the record is not entirely clear, we also understand that these several ranches are “all adjoining.” Seven of the ranches were leased to different tenants during the year 1922. Dale Slnsher and the defendant Alvin Slnsher are brothers. One of the ranches is known as the Nolin ranch, because it is located near Nolin. This ranch is distant about seventeen miles from Pendleton. The Nolin ranch was in charge of Dale Slnsher. Another ranch is known as the upper ranch, and it is about twelve miles from the Nolin ranch. The Upper Ranch embraces about 3,000 acres of land, of which 1,000 or 1,200 acres were sown to wheat each year. The Upper Ranch was leased to Alvin Slnsher and was operated by him in 1922. Although Dale Slusher was in charge of the Nolin Ranch, the defendant Alvin Slusher appeared to have exercised some authority in the management of that ranch, especially in the absence of Dale Slusher. The record does not inform us of the extent of the respective interests owned by the defendant and his brother in the Slusher estate, but we do understand that they are heirs and possibly the principal owners of the estate. Early in March, 1922, Dale Slusher met the plaintiff and his wife in Pendleton and employed them to work on the Nolin Ranch; the plaintiff was to do the chores and his wife was to do the cooking. The plaintiff and his wife worked upon the Nolin Ranch from March 8, 1922, until they were discharged by Dale Slusher on the following eighteenth day of July. The defendant stopped at the Nolin Ranch several times each week on his trips from Pendleton to the Upper Ranch. One day about the middle of April the defendant stopped at the Nolin Ranch shortly before noon. The defendant was on his way to the Upper Ranch, and after he stopped at the Nolin Ranch arrangements were made for Mrs. Coates to accompany him on the trip to the Upper Ranch. The defendant says that Mrs. Coates asked if she conld go along, while she says that he invited her to go and asked her not to take her daughter, who was then about nine years of age. She testified that about three weeks after she went to the Nolin Ranch the defendant began to hug her. The defendant and Mrs. Coates soon after the noon meal left in his car for the Upper Ranch and did not return until about 6 o’clock that afternoon. She claims that on the trip they stopped at one of the sheepherder cabins owned by the estate and that there the defendant took advantage of her.

The plaintiff says that at some time, either the latter part of May or the first part of June, he saw his wife put a paper in the stove, and that when she left the room he took the paper out of the stove. The writing was received in evidence and reads thus:

“Who do you love? I want you tomorrow sure, dearie, all to ourselves, don’t' say no. You think and scheme.”

The plaintiff says that he knows the defendant’s handwriting and that in his opinion the defendant wrote the note. The signature subscribed by the defendant to his answer herein was received in evidence for comparison by the jury. The defendant denied that he wrote the note, but it is a significant fact that he made no effort, except his bare denial, to show that the note was not his handwriting. The record contains much additional evidence which, if believed, strongly tends to support the allegations of the complaint.

When the plaintiff and his wife were discharged from the Nolin Ranch on July 18th they went to Pendleton and occupied an apartment in the Eureka Apartment House for a period of about two weeks, and then they moved with their daughter to the Parkview Apartments where they were living on August 3d.

The record contains evidence which, if believed, warranted the jury in finding that one morning between July 20th and July 25th, Mrs. Coates accompanied the defendant to his home in Pendleton and remained there with him from about 9:30 until about 11:30 o’clock. The record also contains evidence which, if believed, warranted the jury in finding that while the plaintiff and his family were still occupying the Eureka Apartments Mrs. Coates met the defendant one night about 9 o’clock and got in his car and accompanied him to his home where she remained until about 4:30 o’clock the next morning and then was brought by the defendant in a drunken condition in his automobile to the Eureka Apartments.

On August 3d the plaintiff told his wife he was going to Spokane and possibly to Wallace, Idaho, in order to get work; and so he tied his bedding to his motorcycle and left about noon. He had previously consulted with a lawyer about procuring a divorce. The plaintiff had been watching his wife and had observed acts of which he could rightfully complain if they occurred as he says they did. Instead of going to Spokane or to Wallace, the plaintiff went only as far as Freewater, and then he returned to Pendleton, arriving there about 8 o’clock in the evening of the day on which he left Pendleton. He took a position in a park where he could see a window in his apartment; and after waiting for half an hour or an hour a light appeared in the window and he saw, according to his testimony, his wife and the defendant embracing each other and begin to undress and pull down the curtain. The plaintiff then went to the apartment house and called the landlady and telephoned to the police station. Joe Blakely, the city marshal, and John Roheur, a policeman, responded to the call. The plaintiff unlocked one of the two outside doors and, together with the two policemen, entered the apartment which consisted of two rooms, one of which was the kitchen and the other served both as a living-room and as a bedroom. When the plaintiff and the two policemen entered they found Mrs. Coates and the defendant in bed together, she with a nightgown on and he in his underclothes. There is evidence to the effect that Mrs. Coates yielded to the defendant and that she yielded on different occasions between the middle of April and the 3d of August. Mrs. Coates testified that the defendant told her that he would take care of her and would give her anything if she would go with him and that he would provide a home for her and that she would not have to work any more and that he would procure a divorce from his wife and marry her. Mrs. Coates also testified that she became dissatisfied with the plaintiff and that her feelings toward him changed.

Prior to the trial of the instant case the plaintiff obtained a divorce from his wife and secured the custody of the daughter.

The printed brief filed by the defendant opens by declaring: “This case is the result of an attempted badger game.” The defendant devotes considerable space in his printed brief to an elaboration of this contention. In the oral argument made at the hearing the defendant’s views were urged with vigor; but it is a complete answer to this contention of the defendant to say that his contention involves a pure issue of fact which was submitted to the jury with proper instructions; and that the jury resolved the issue of fact against the defendant. There was not only some substantial evidence but there was much substantial evidence to support the finding of the jury; and therefore this court cannot on appeal review the jury’s decision of that issue of fact.

It is argued that the judgment ought to be reversed because of the asking of four different questions which the defendant claims were leading and suggestive.

~W. F. Coates, who was the first witness, was asked:

“State if you had ever known anything wrong with your wife in any way, during the years you lived with her up until the time you went to the Slusher ranch.” He answered: “None whatever.”

Grace L. Coates, who was called in rebuttal as a witness for the plaintiff, was asked:

“State, Mrs. Coates, whether or not you had ever been intimate with anybody else than your husband prior to the time you and Al. Slusher met?” She answered: “No, sir.”

Mrs. Coates was also asked the question:

“Now state whether or not there was any improper conduct in any way between you and Heitman upon that occasion or any other?” She answered: “There was not.”

Harley Heitman was regularly employed at the Upper Eanch. However, he worked for a couple of weeks or more at the Nolin Eanch. One evening in the latter part of June or the first part of July during the period while Heitman was working at the Nolin Eanch he took his laundry to the Adams place and Mrs. Coates accompanied him. Each rode a horse and they were gone between an hour and an hour and a half. In the course of the trial the defendant sought to make much out of this incident. The last-quoted question which was asked Mrs. Coates related to the Heitman incident.

Mrs. Coates was also asked the following question:

“Mrs. Coates, did you have any answer you knew you could make in the divorce case!” She answered: “I didn’t have the money to go into court at all.”

The question and answer next following were as follows:

“State whether or not the things Mr. Coates charged you with in the complaint were true or not? They were.”

Our Code,' Section 858, defines a leading question thus:

“A question which suggests to the witness the answer which the examining party desires is denominated a leading or suggestive question. On a direct examination, leading questions are not allowed, unless merely formal or preliminary, except in the sound discretion of the court, under special circumstances making it appear that the interests of justice require it.”

A question which can be answered by “Yes” or “No” is not necessarily leading; if it does not suggest one answer more than the other it is not leading, because it does not suggest the answer which the examining party desires. A question which does not itself suggest the answer expected is not necessarily leading even though it calls attention to a subject about which testimony is desired. Moreover, as stated in 28 R. C. L. 591:

“There must, however, have been a manifest abuse of discretion by the trial court in permitting a party to ask leading questions of a witness, before a ease will be reversed on that ground. It must have influenced the answer, and injury must have resulted.”

Three of the four questions do not appear to have been leading. However, even if it be assumed that each of the four questions was leading and suggestive as claimed by the defendant, nevertheless it is entirely clear from a reading of the record that the defendant was not injured in the slightest degree.

The next assignment of error relates to declarations made by the deserting spouse. The plaintiff had testified in his direct examination and on cross-examination concerning the occasion when his wife, after remaining in the home of the defendant all night, was brought to the Eureka Apartments in a drunken condition, and he had told the jury that shortly after midnight he had gone to the Slusher home and, looking through a window, saw his wife and Slusher, and that subsequently he hunted up a policeman, who told him in substance that nothing could be done about the matter. On redirect examination the plaintiff was asked:

“What did your wife say when she came home as to where she had been when she was drunk upon that occasion? * * What explanation did she give?”

Over the objection of the defendant the plaintiff answered: “She said she had been up to Slusher’s to a party.” The answer was nothing more than a narrative of a past transaction and was not competent. But the court subsequently cured the error by instructing the jury as follows:

“At this time I want to withdraw from the jury the testimony that was received this morning to the effect that Mrs. Coates stated to the plaintiff that she had been at the Slusher house. If there is any controversy about this piece of testimony I will have it referred to and given to the jury later. The jury will give no consideration to that answer. That does not take from the jury the testimony in the case of the plaintiff concerning what he saw in his direct testimony concerning the visit of his wife to the Slusher home; it merely goes to the statement which the plaintiff says that his wife made to him that she had been at the Slusher house; that is withdrawn from the jury.”

The defendant insists that the answer of the witness necessarily resulted in injury and that it was impossible after the injury was done to effect a cure by an instruction withdrawing the damaging answer from the jury. We are quite sure that the defendant suffered no injury whatever, particularly in view of the fact that the plaintiff had previously testified about seeing Mrs. Coates in the Slusher home that night and in view of the further fact that Mrs. Coates testified that she was at the defendant’s home that night.

Mrs. Eetta Cummings, who lived at the Eureka Apartments when the plaintiff and his family resided there, testified that one evening while she and two other ladies and Mrs. Coates were on the lawn, Mrs. Coates said: “She didn’t mind having Mr. Slusher come there, he was a millionaire.” This testimony was obviously competent: Pugsley v. Smyth, 98 Or. 448 (194 Pac. 686).

The plaintiff, after testifying that he and the two policemen found the defendant and Mrs. Coates in bed, was asked by his attorney what was said by either of the parties and he answered: “They never said a word except Slusher denied ever being with her. I told him he was a damned liar.” This testimony was not incompetent; and consequently the defendant cannot complain about it.

However, the plaintiff was then asked a question to which he gave the following answer:

“One of the officers, when we got ready to leave, I told him to throw them in jail, when we got ready to leave, one of the officers started ont and went hack and asked her if she had ever had intercourse with Mm, and she never answered it, and he told her the evidence was sufficient anyhow, and she answered, yes.”

The defendant moved “to strike out that- portion of the evidence where the officer said, the evidence was sufficient, as incompetent and hearsay and does not tend to prove any issue in the case.”

The defendant had left the room and was not present when the officer and Mrs. Coates made the last-quoted statements. Although none of the conversation between Mrs. Coates and the officer was competent (Pugsley v. Smyth, 98 Or. 448, 464, 194 Pac. 686), it must be remembered, in determining whether or not the challenged portion of the answer of the witness was prejudicial error, that the objection of the defendant goes only to the statement of the officer that “the evidence was sufficient anyhow.” We must also remember the testimony of the plaintiff concerning what he saw when in the park and all the circumstances connected with finding the defendant and Mrs. Coates undressed and in bed together. Roheur and Blakeley were called as witnesses for the plaintiff and each testified in detail about what occurred when they entered the room and found the defendant and Mrs. Coates. Although neither of these two witnesses testified on direct examination concerning any question that either may have asked Mrs. Coates concerning any intimacy between the defendant and her, the defendant nevertheless on cross-examination elicited from Rolieur testimony to the effect that he heard Blakeley ask Mrs. Coates “If she had had intercourse with that man and she said yes”; and on cross-examination Blakeley stated that he “said” to Mrs. Coates, “did you have intercourse with this man and she said yes.” Although none of the conversation between Blakeley and Mrs. Coates would have been competent in the face of an objection, the defendant, apparently in order to develop his theory of a badger game, desired that the record contain not only the testimony of the defendant to the effect that Mrs. Coates smiled when he left the room but also all the conversation between Blakeley and Mrs. Coates except that part of Blakeley’s statement which the defendant sought to have stricken out. The defendant cannot, nor does he complain of the question asked by Blakeley or of the answer given by Mrs. Coates. See State v. Farnam, 82 Or. 211, 242 (161 Pac. 417, Ann. Cas. 1918A, 318). In view of the condition of the record we hold that the failure of the court to strike out the few words moved against by the defendant did not prejudice him.

The next assignment of error involves a question asked the plaintiff on direct examination when a witness in his own behalf. The question was: “Just tell us how you feel about your little girl and the effects of this upon her.” When the defendant objected the court ruled thus:

“It is not a question of how he feels, but it is a question of what the effect has been. He may answer in that respect.”

The witness answered as follows:

‘ ‘ The effect has been very bad on me, and the little girl both, the little girl comes down to see me, and I go up to the academy to get her and she cries to see her mother and sometimes I let her go and sometimes I don’t let her go to see her mother. ’ ’

The objection of the defendant is based on the motion that the purpose of the question was to ascertain “the effect of this” upon the little girl. As we interpret the question the object of the examiner was to have the witness tell just how he felt about the effect of this upon her. The court in ruling upon the objection evidently gave the same interpretation to the question and limited the question to what the effect has been on him; and the question when so limited was competent.

The plaintiff was asked on direct examination:

“What is the cost of maintaining yourself and family as it exists now as compared with what it was before?”

The court said: “It is touching the element of damage,” and permitted the witness to answer thus:

“Well, it is more than before, because I have got to board out now, and I have to pay the little girl’s board in the academy, and I can’t take her into every place by myself where I can save any money; it takes something like $20 a week to keep me and her now, or a little better, possibly twenty-five to keep us and board us.”

The defendant relying on the holding in Pugsley v. Smyth, 98 Or. 448, 459 (194 Pac. 686), that “the right to recover is based upon the loss of consortium,” argues that the evidence objected to was not competent. It is true that the right to recover is based upon the loss of consortium, but it is also true that if this basic right exists then the injured spouse is not limited to the recovery of damages measured by the loss of consortium but is entitled to damages measured by the permanent loss of the spouse’s aid, comfort and companionsip; and the injured spouse may also recover for the wrong and injury done to his or her feelings. Such compensatory damages are recoverable as are the direct, probable or proximate consequences of the wrongful act of the defendant: 30 C. J. 1148, 1149; Rudd v. Dewey, 121 Iowa, 454, 461 (96 N. W. 973).

The defendant complains because the plaintiff was permitted over objection to testify on redirect examination that after the occurrence in the Park-view Apartments he applied to the “prosecuting attorney” for a warrant of arrest against Slusher and learned that he could not prosecute the defendant for adultery. The defendant insists that this testimony was highly prejudicial because it was no part of any issue in the cause and was a collateral matter. It must be remembered that the defendant was vigorously contending and that he still insists that he was the victim of a badger game. In view of this contention it was competent for the plaintiff to testify that he made an effort to bring about the prosecution of the defendant.

The defendant admitted that Mrs. Coates on one occasion accompanied him to his home. The version of this occasion given by the defendant was entirely different from the version given by the plaintiff. The defendant was asked on cross-examination, “Was your wife there at that time?” The court, over objection, required the witness to answer and he said, “No, she was not.” The defendant now argues that the question was wholly immaterial and irrelevant. In our view the question was competent. It must be borne in mind that the plaintiff was contending that the conduct of the defendant and Mrs. Coates was improper while the defendant was contending that the sole purpose of the occasion mentioned was to obtain a package belonging to Mrs. Coates and which he had brought from the Nolin Ranch. If the defendant’s wife had been home it is not likely that he would have entered any objection to the question; but, upon the contrary, it is likely that he would have been anxious to have told the jury that his wife was home. It is manifest that if his wife was not at home it was a circumstance which the plaintiff had a right to bring to the support of his contention.

The next assignment of error relates to the incident when Heitman, accompanied by Mrs. Coates, took his laundry to Mrs. Adams. Mrs. Coates had told in her direct examination about why she happened to go with Heitman and about what occurred on the trip; and she also stated that she had a talk with her husband when she and Heitman came back together. Mrs. Coates was then asked: “What did your husband say at that time?” The defendant complains because the court sustained an objection to the question. It is not entirely clear whether the object of the cross-examiner was to ascertain what the plaintiff said about his wife when outside of the house and “in the yard,” or when inside the house and beyond the hearing of others. The defendant argues that it is possible that the plaintiff abused his wife and that if the witness had been permitted to answer she might have revealed the fact that he had abused her and that he was jealous and suspicious of her while out riding with Heitman and that because of all this her possible answer “might have had a great deal to do with convincing the jury that she had no affections for her husband.” The record contains much evidence to the effect that the plaintiff cursed both Heitman and Mrs. Coates and threatened to kill both of them if he caught them together again. It is true that the plaintiff testified that he did not remember what he said upon the return of Heitman and Mrs. Coates; but it is also true that he did not deny that he cursed Heitman and his wife or that he threatened to kill them. It is true that Heitman, who was a witness for the defendant, was apparently slow to testify, but it is likewise true that he did testify that the plaintiff threatened to kill him and Mrs. Coates. The uncontradicted evidence is that the plaintiff was angry when Heitman and Mrs. Coates returned; and, unless it can be said that the slowness of Heitman to testify and the failure of the plaintiff to remember what he said constitute contradictory evidence, it must also be said that the uncontradicted evidence is that the plaintiff cursed Heitman and Mrs. Coates and ordered her into the house. In this situation the ruling of the court worked no injury to the defendant, even though it be assumed that the question was properly asked.

Hale Slusher a witness for the defendant, testified that he discharged the plaintiff and his wife. One of the last questions asked on the direct examination of this witness was the following: “Why did you discharge him and her?” The answer was: “For some time their work had not been to my satisfaction.” On motion of the plaintiff the court struck out the answer, and this ruling is assigned as error. The witness had previously testified about notifying the plaintiff that he was discharged and that the plaintiff had insisted he be given a reason for his discharge; that he told the plaintiff that he did not think it was necessary to give any reason; that the plaintiff talked at length about the defendant as the one who was responsible for getting him- discharged; and that the plaintiff "was very indignant over it.” Among other answers given by the witness previous to the answer struck out by the court was the following, which was received without objection:

"He said * * he wanted to know what he was fired for, and I told him I didn’t think it was necessary, I was not satisfied with his work, and that is the only explanation I would give him.”

Thus it is ,seen that the evidence to which the defendant says he was entitled had already been received and was submitted to the jury for consideration; and, consequently, the'ruling of the court was not prejudicial error even though it be assumed that the testimony was relevant and competent.

It is next claimed that the court in giving instruction No. 12 assumed that the defendant had been guilty of "wrongful acts and conduct,” and thus invaded the province of the jury. But this instruction must be viewed in the light of instruction No. 23 and the remaining portions of the charge, and when so viewed it becomes manifest that the court made it entirely clear that it was for the jury alone to ascertain the facts.

Error is assigned because of the giving of instruction No. 20 which reads as follows:

"If you find plaintiff, under the instructions given you, is entitled to recover against defendant, then you should find such damages in his favor as will compensate him for the loss of his wife’s society, assistance, affection, comfort and companionship for any physical pain or mental anguish, suffering, humiliation or disgrace that he may have endured.”

The instruction given is amply supported by adjudicated cases and text-writers: 30 C. J. 1148, 1149; Nevins v. Nevins, 68 Kan. 410 (75 Pac. 492); Hartpence v. Rogers, 143 Mo. 623 (45 S. W. 650). In 13 R. C. L. 1481, the rule is stated thus:

“As a general rule, the plaintiff may recover for all direct and proximate losses occasioned by the tort for the physical pain, if any, inflicted; for his or her mental agony, lacerated feelings, wounded sensibilities, and the like.”

The defendant questions the instruction which permitted the jury to assess punitive damages. Exemplary damages are recoverable in this jurisdiction: Bingham v. Lipman, 40 Or. 363 (67 Pac. 98). And we hold that punitive damages may be recovered in actions like the instant case: 13 R. C. L. 1482.

The defendant criticises instruction No. 22, which reads thus:

“Unless you first find plaintiff is entitled to recover compensatory damages then you are instructed you cannot find against the defendant for punitive. Punitive damages means damages by way of punishment, sometimes called smart money but there must first be a finding by the jury in a substantial sum, not necessarily any particular amount, but something more than nominal damages of a compensatory nature.”

The objection made by the defendant is:

_ “The jury may have been misled by this instruction in regard to the meaning of ‘a substantial sum * * something more than nominal damages.’ ”

Presumably all the jurors understood the plain meaning of the English language, and, if they did, they could not have been misled.

The defendant complains because several instructions requested by him were not given in the language of the requested instructions. We do not deem it necessary in this opinion to quote the requested instructions; but we think it is sufficient to say that we have examined the requested instructions and the charge as given by the court, and we find that the requested instructions, to the extent that they were correct, were in substance and effect completely and adequately given by the court in its charge to the jury.

The court properly denied the defendant’s motion for a nonsuit and his motion for a directed verdict.

In the circumstances revealed by the record this court cannot say that the verdict ought to be set aside on the ground that the damages are excessive.

The defendant was represented by attorneys of large experience and of acknowledged skill and ability; and they have on this appeal seized upon and in a carefully prepared brief made the most of every point that could in the slightest degree be of aid to the defendant. We have examined every point presented by the defendant; and it is our conclusion that the trial was free from prejudicial error. The result, therefore, is that the judgment must be affirmed. Affirmed.

Burnett, J., not sitting.