McKim v. Beiseker

185 P. 153, 56 Mont. 330, 1919 Mont. LEXIS 38

• Court: Montana Supreme Court
• Decided: October 25, 1919
• Docket: No. 4,041
• Status: Published

Opinion

HONORABLE R. LEE WORD,

a Judge of the First Judicial District, sitting in place of MR. JUSTICE HURLY, disqualified, delivered the opinion of the court.

This is an action for criminal conversation. The suit was brought in Sheridan county, but was transferred to and tried in Richland county. The jury found for the plaintiff in the sum of $25,000, the full amount demanded. Judgment was rendered and entered upon this verdict. A motion for a new trial was made and denied. This appeal is from the judgment and order overruling the motion for a new trial.

Appellant assigns as error the ruling of the court excluding evidence as to the general bad reputation of Mrs. Ebby McKim, wife of plaintiff, for virtue and chastity; the ruling of the court excluding certain other evidence offered in behalf of defendant; the refusal of the court to give requested instruction No. 5; and, finally, its refusal to grant the defendant a new trial on the ground of excessive damages appearing to have been given under the influence of passion and prejudice.

In discussing the first error assigned — that the court erred in [1] excluding evidence as to the general bad reputation of Mrs. McKim for virtue and chastity — this court will treat this assignment as including within it other errors specified of the same general nature. The offered evidence had, and could have, but one general purpose, and that was to mitigate any damages which might be awarded the plaintiff. The answer of the defendant was a general denial of the allegations of the complaint, and the question presented is whether or not, under the general denial contained in the answer, evidence of matter in mitigation of damages may be given. This court is of opinion that the evidence offered, being in mitigation of damages, was not admissible under the general denial; that it was tendered to establish a partial defense, and as such could not properly be admitted in the absence of a plea of that nature in the answer.

Section 6549 of the Revised Codes is as follows: “A defendant may set forth in his answer as many defenses or counterclaims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Each defense or counterclaim must be separately stated and numbered. Unless it is interposed as an answer to the entire complaint, it must distinctly refer to the cause of action which it is intended to answer.” Section 6550 reads as follows: “A partial defense may be set forth as prescribed in the last section; but it must be expressly stated to be'a partial defense to the entire complaint, or to one or more separate causes of action therein set forth. Upon a demurrer thereto the question is whether it is sufficient for that purpose. Matter tending only to mitigate or reduce damages, in an action to recover damages for the breach of a promise to marry, or for a persona] injury, or an injury to property, is a partial defense, within the meaning of this section.” That the purpose of the evidence excluded was to mitigate or reduce damages is clear, and that matter tending only to mitigate or reduce damages is a partial defense, and, to permit- of proof, must be pleaded, is, in our opinion, the meaning of section 6550, above.

Counsel for appellant contend that section 6550 is permissive, and not mandatory, and that, while under its terms partial (je-, fenses may be pleaded, yet evidence of matter tending only to mitigate or reduce damages is admissible under a general denial in an answer which contains no plea of matters in mitigation of damages. We cannot accept this construction of this statute. If a defendant does not wish to offer evidence in mitigation or reduction of damages, then he may omit from his answer any partial defense under which such evidence is admissible. But if he desires to offer evidence at the trial of matter tending to mitigate or reduce damages, then the answer, to make such evidence competent, must contain a plea of such matter as a partial defense. In such a sense only is section 6550 permissive. We conclude, therefore, that the court did not err in excluding the evidence in question. This construction of section 6550 disposes of all assignments of error based upon the exclusion of evidence offered for the purpose of proving the general bad reputation of Mrs. McKim.

The trial court erred in striking out the answer of the [2] defendant, “That testimony is false.” This answer was plain, direct, and to the point, and in itself was not objectionable. This ruling of the court, while erroneous, was not [3] prejudicial. Nor did the court err in refusing to give defendant’s offered instruction No. 5. The record contains no evidence which warranted the giving of this instruction.

The remaining assignment of error to be considered is “that [4] the verdict is excessive, indicating passion and prejudice on the part of the jury.” As we are of opinion, from a careful and repeated examination and consideration of the whole record, that this assignment of error is well taken, and that in justice the judgment rendered upon the verdict of the jury must be reversed, and a new trial ordered, we will give our reasons for this conclusion. It may be true that courts will seldom interfere with a finding of a jury in an action for criminal conversation; and it may be admitted that, unless it is apparent that the jury was influenced by prejudice and passion, its award will be allowed to stand; and yet, on the whole record, we are driven to the conclusion that the jury must have been influenced by passion and prejudice when, under the evidence before them, they found for the plaintiff in the sum of $25,000 — all the damages that plaintiff asked. When the question of excessive damages is up for review, “necessarily all the prominent features of the case must be taken into consideration in passing upon the question whether the verdict was reached as a result of deliberate calculation and weighing of facts, conditions, relations, and circumstances, on the one hand, or of impulse, passion, or prejudice, on the other.” (Spelling on New Trial and Appellate Practice, see. 231.) So considering all matters, facts, and conditions disclosed by the record, we are forced to the conclusion that the verdict of the jury was reached, not as the result of deliberate calculation and weighing of all the facts and circumstances, but because of the existence of passion and prejudice.

As the ease must be tried anew, particular comment upon the evidence is omitted.

The judgment and order denying the motion for a new trial are reversed and the cause is remanded for a new trial; defendant to be granted leave to amend his answer if he so elects.

Reversed and remmided.

Mr. Chief Justice Brantly and Associate Justices Holloway and Patten concur.