Stanley v. Stanley , 32 Wash. 489 ( 1903 )

The opinion of the court was delivered by

Fullerton, C. J.

The respondent brought this action in the court below to recover from the appellant and William M. Stanley damages for alienating her husband’s affections. On the trial she recovered a substantial judgment against both defendants, from which an appeal was taken to this court, which reversed the judgment, and remanded the cause, with instructions to grant a nonsuit as to William M. Stanley, and to retry the cause as to the appellant. Stanley v. Stanley, 27 Wash. 570 (68 Pac. 187). The cause was retried, as directed, and resulted in a verdict and judgment against the appellant for the sum' of $3,500. This appeal is from that judgment.

The first error assigned, and the one to which the argument both in the brief and at the bar was principally directed, is that the evidence is insufficient to justify the verdict. We have examined the some eight hundred pages of the record devoted to a statement of the evidence, and while we can see how the jury could well have found that the weight of the evidence was with the appellant, we cannot say there was no substantial evidence sustaining the respondent’s case. Indeed, if the respondent’s testimony was to be believed (and that was a matter solely for the jury to determine), the appellant was the sole cause of her husband’s loss of affection for her, and the caixse of his subsequent abandonment of herself and her child. While there is not much evidence corroborative of her statements, none is required to sustain the verdict in this court. We are not permitted to retry the facts. If there is substantial evidence in the record sustaining the verdict and judgment, though it be but the evidence of one witness, and that witness the person in whose favor the verdict and judgment is rendered, we have no rightful power to reverse the judgment for want of facts, no matter how strongly we may be convinced that the evidence preponderates with the other side. On this question, therefore, the appellant is concluded by the finding of the jury.

Of the assignments which are thought to require- a retrial of the cause, the first is that the court erred in sustaining objections to the following questions asked the respondent on -her cross-examination, viz.: “How I wish you would state to this' jury one single act on the part of this defendant, Mrs. Stanley, whereby she caused a ’separation between you and your husband?” “Can you name any one act on behalf of this defendant that caused the separation of you and John?” The court sustained objections to these questions, we think rightly, on the ground that they were too general to support any of the issues. The respondent did not contend, either in her complaint or in her evidence in chief, that any one act of the appellant caused the separation of herself and husband, but she alleged and testified to a series of acts and circumstances, covering a considerable period of time, and it was the sum of these that she relied upon as sustaining her claim that her husband’s affection had been alienated by the appellant. But had it been proper to have required her to answer the questions, her answers could not have enlightened the jury in any way. The jury then knew that she could not name any such act, and knew, moreover, that she did not profess or pretend to be able to do so. When a fact which, from its nature, cannot be contradicted is once fairly presented to a jury, it is not error to refuse to permit subsequent repetitions of it.

The court in charging the jury stated to them that they might consider loss of support as an element of damage in case they found for the respondent; carefully instructing them as to the time her right to such support ceased. It is objected to this that there was no evidence before the jury tending to show the value of such support, and that any estimate as to its value by the jury would be mere conjecture. It is true no one stated in dollars and cents what the value of such support would be, but we cannot think for that reason there was no evidence at all on the question. The surrounding circumstances and conditions in life of the husband, as well as those of the respondent, were very fully shown, and from these the jury were just as capable of forming an estimate of the loss as any individual could possibly be. It was not a matter that called for expert testimony.

The trial court permitted the respondent to read to the jury a complaint in the action for divorce brought in the name of the respondent’s husband against her, after the attorney who drew the complaint had testified that he obtained the facts recited therein from the appellant, and had instituted the action at her solicitation. It is urged that to admit the complaint in evidence was error. But we think not. It was permissible for the attorney who drew the complaint to testify who employed him to draw the complaint, and who furnished him with the facts therein recited. Stanley v. Stanley, 27 Wash. 570 (68 Pac. 187). The complaint, therefore, was admissible as a declaration of the appellant.

It is next urged that the verdict, was a chance or quotient verdict, and that the motion for a new trial should have been granted for that reason. It does appear by the affidavit of one of the jurors and the statement of another, shown by the affidavit of counsel, that the jury, in the course of their deliberation, after they had agreed to return a verdict for the respondent, set down the amount each individual juror favored returning, added the amounts together,, and divided the total by twelve; but it does not appear that they agreed in advance to return as their verdict the sum that should be, thus obtained, nor did they, in fact, return such a sum as- their verdict, though, perhaps, the verdict was very nearly one such amount. This is insufficient to authorize the setting aside of the verdict.' Courts have held that, where the jurors agree in advance of the process to return the- result as- their verdict, and afterwards do so, that the verdict, ought not to: be* allowed to stand. But it is not- a valid objection to a verdict that it was the result of this- or some other- method of computation, if it finally receives the sanction of' the necessary number of jurors required to return a verdict. Watson v. Reed, 15 Wash. 440, (46 Pac. 647, 55 Am. St. Rep. 899).

It is next said that the verdict is excessive; and was given under the influence of passion and prejudice; but we find nothing in, the, record -to sustain, these contentions. The amount returned was not immoderate when compared! with verdicts: in similar cases, and- we see- nothing- in the evidence or the circumstances surrounding the parties which even tends to show that the verdict was not the result- of the honest, conviction of the- jury.

Lastly, it is insisted that the evidence shows a full and complete settlement of the cause of action prior to the commencement of the action, and that this court ought to reverse the cause, and direct a judgment for the appellant, for that reason. But here again the evidence was conflicting, and the finding of the jury on conflicting evidence, we repeat, is conclusive upon this court.

The judgment appealed from is affirmed.

Hadley, Anders, Dunbar and Mount, JJ., concur.