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$5,421.87. The plaintiff complained against the appellants on a promisthat if the defendant was entitled to

sory note.

The defense relied recover, a larger recovery was war- on was the breach of an alleged ranted by the undisputed evidence, warranty.

The jury found and that such a verdict, being incon- less than the face of the note, but sistent with the evidence, was mani- more than the amount to which the festly the result of an unlawful com- plaintiff was entitled under the evipromise. The court held that the dence, admitting that the alleged warplaintiff was not entitled to a new ranty was proven.

The jury, trial on the ground that the jury under the evidence, could well have rendered against it a verdict much found the full amount of the note smaller than the evidence warranted, and interest. That they found less and that there was no compromise is not a matter of which Lighty can verdict, as no rule of law entitled complain. As long as we require all the defendants to any particular the jury to agree, we must expect comamount of damages. The court also promise verdicts.” said that the defendant could submit

II. In action in tort. to the insufficient verdict, and the plaintiff could not complain.

a. Gencral rule. In Strickland v. Hutchinson (1905)

In an action in tort, the amount 123 Ga. 396, 51 S. E. 348, an action of damages being unliquidated, the to recover on a promissory note, the

appellant has no ground to complain defendant interposed a counterclaim that the appellee recovered less than which appeared to entitle him to more he should. than the face of the note. The jury Alabama.-Alford v. Samuel (1845) found a nonsuit and charged each 8 Ala. 95. party one half of the costs. The California.—Compressed Air Mach. plaintiff moved for a new trial, and Co. v. West San Pablo Land & Water claimed that if the defendant was en

Co. (1908) 9 Cal. App. 361, 99 Pac. titled to the counterclaim, he was 531. entitled to much more than the jury Florida. Interstate Lumber Co. v. allowed him. The decision of the

Woods (1914) 67 Fla. 202, 64 So. 741. court was to the effect that such a

Georgia. Mullins v. Murphy state of facts furnished no ground (1882) 69 Ga. 754; Schaefer v. Knott of complaint on the part of the plain- (1882) 69 Ga. 772; Clark v. Thomptiff, who suffered no injury thereby.

son (1896) 99 Ga. 221, 25 S. E. 247; It was held in Coutrakon v. Passow

Atlanta & B. Air-Line R. Co. & Sons (1915) 193 Ill. App. 447, that' Weaver (1904) 121 Ga. 466, 49 S. E. the appellants could not complain 291; Decatur County v. Philyaw that the verdict was the result of com

(1921) 26 Ga. App. 702, 106 S. E. 799; promise because it was less than the

Central of Georgia R. Co. v. Trammell amount which might have been found (1901) 114 Ga. 312, 40 S. E. 259. due the appellee. The court indi- Illinois. Florsheim v. Dullagham cated that the evidence might have (1895) 58 Ill. App. 593; Moyers V. warranted the jury in allowing a set- Illinois C. R. Co. (1915) 197 Ill. App. off or partial defense.

179; Ryan v. Harty (1916) 200 Ill. "A plaintiff cannot complain be- App. 470; Rauen v. Chicago R. Co. cause the jury awarded the defendant (1917) 205 Ill. App. 464. less than the full amount of his Kansas. Graves v. Negy (1923) counterclaim." Rudolph v. Hewitt

114 Kan. 373, 219 Pac. 286. (S. D.) supra, an action on a promis- Michigan. Rogers v. Fowler sory note set off by a contract of (1908) 151 Mich. 485, 115 N. W. 469. guaranty.

Mississippi. - Kansas City, M. & The facts and the law were stated B. R. Co. v. Doggett (1889) 67 Miss. by the court in Lighty . Overbay 250, 7 So. 278; Louisville & N. R. Co. (1868) 29 Ind. 433, as follows: “This v. Thomas (1906) 87 Miss. 600, 40 was a suit by Overbay's administrator So. 257.

31 A.L.R.-70.

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Missouri. Adams v. St. Louis & ing of a smaller verdict than the eviS. F. R. Co. (1910) 149 Mo. App. 278, dence warranted against it. The 130 S. W. 48; Allen v. Jackson (1919) court said: "In the case at bar we

Mo. App. —, 216 S. W. 539; Coyne think it perfectly clear from the v. Galland (1922) — Mo. App. -, 243 pleadings and the evidence of both S. W. 376.

plaintiff and defendant that, if plainNew Hampshire. - Luey v. Bundy tiff was entitled to recover the posses(1838) 9 N. H. 298, 32 Am. Dec. ,359. sion of the property sued for, it was

South Carolina. Trowbridge also entitled to recover as damages Charleston & W. R. Co. (1911) 90 the sum of $50 per month from the S. C. 183, 73 S. E. 78.

7th day of February, 1906. The findSouth Dakota. Fowler y. Aber ing, therefore, of a lesser sum in case deen R. Co. (1919) 41 S. D. 563, 171 a delivery could not be had, could N. W. 816; Fahrni v. Artz (1920) 43 in no wise injure appellant, but was S. D. 188, 178 N. W. 733.

to its benefit. . . A judgment Tennessee. Illinois C. R. Co. v. will not be reversed or a new trial Abernathey (1901) 106 Tenn. 722, granted for a mere error, when it 64 S. W. 3.

clearly appears that the appellant Texas. St. Louis, S. F. & T. R. has suffered no injury therefrom." Co, v. Fenley (1908) Tex, Civ. App. Even though the verdict in an ac-, 118 S. W. 845; Taylor Bros. v. tion for tort cannot be reconciled Hearn (1910) 63 Tex. Civ. App. 333, with any tenable theory, the defend133 S. W. 301; Galveston, H. & S. A. R. ant cannot take advantage of harmCo. v. State (1917) Tex. Civ. App. less error and complain that the evi-, 194 S. W. 462, reversed on other dence is sufficient to support a larger grounds in (1919) 110 Tex. 128, recovery for the plaintiff. Farmers' 216 S. W. 393, 218 S. W. 361; Farmers' & M. State Bank y. Guffey (1923) & M. State Bank v. Guffey (1923)

Tex. Civ. App. , 255 S. W. 462, Tex. Civ. App. 255 S. W. 462.

an action for the conversion of bank Washington. — Saylor v. Montesano deposits to the extent of $4,033.50 (1895) 11 Wash. 328, 39 Pac. 653; wherein a verdict for $1,500 was reJose v. Stetson (1899) 20 Wash. 648, turned. 56 Pac. 397; Ross v. Rose (1920) Where verdict was rendered 109 Wash. 273, 186 Pac. 892.

against a sheriff for a statutory Wisconsin, Corcoran v. Harran amount for failure to pay over money (1882) 55 Wis. 120, 12 N. W. 468. collected on a fieri facias, he could

not complain that the verdict was b. Application of rule.

inadequate, as not including the Tort against property.

amount of the execution. Alford y. The general rule was applied in Samuel (1845) 8 Ala. 95. Compressed Air Mach. Co. v, West The rule was also applied in InterSan Pablo Land Co. (1908) 9 Cal. App. state Lumber Co. v. Woods (1914) 67 361, 99 Pac. 531, where the plaintiff Fla. 202, 64 So. 741, and in Newhouse sued to recover the possession of Mill & Lumber Co. v. Avery (1911) certain machinery and $673 damages 101 Ark. 34, 140 S. W. 985, wherein for conversion, or the sum of $1,200 action was brought to recover exemand damages in case the machinery plary damages for unlawfully cutting could not be delivered. The jury re- timber, but only compensatory damturned a verdict in favor of the plain- ages were awarded. tiff for the recovery of the machinery, And likewise, in Florsheim v. Duland damages at the rate of $50 per laghan (1895) 58 Ill. App. 593, an acmonth for the detention thereof, or, tion for trespass, the court said: in case a delivery could not be had, “That the damages are less than the the sum of $1,200 as the value of the evidence required can be complained property, and $150 damages for the of only by the plaintiffs below.” detention. It was held that the de- It was contended in Graves v. Negy fendant could not object to the find- (1923) 114 Kan. 373, 219 Pac. 286,

a

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that the particular verdict was not The record showed that the city was sustainable under any view of the guilty of negligence in failing to keep evidence. The court, in denying the a highway in a safe condition. A ground of error, said: “It is true that verdict was returned for $1 as damwe can glean no figures in the testi- ages for the injury of the plaintiff's mony from which the precise sum, horse. The defendant contended that $1,000, can be deduced. Under the the verdict was error, in that a reevidence a verdict in plaintiff's favor covery, if at all, should have been for a considerably larger sum

for a much larger sum. The court could easily have been found, and held that the error could not be apparently ought to have been, but urged by the defendant. there were a number of loosely proved Complaint was made by the defendmatters involved. Since plaintiff ant in Central of Georgia R. Co. v. makes no complaint of the verdict, and Trammell (1901) 114 Ga. 312, 40 S. E. it was for a sum well within the evi- 259, an action for damages for neglidence, no prejudice to defendants is gence, that the plaintiff's verdict discernible, and the amount will have was inadequate. It was conceded that to stand.”

if the plaintiff recovered at all he The holding in Galveston H. & S. A. should have recovered a larger verR. Co. v. State (1917) Tex. Civ. dict, according to the evidence of App. 194 S. W. 462, reversed on damages suffered. The court ruled other grounds in (1919) 110 Tex. 128, that the defendant had no right to 216 S. W. 393, 218 S. W. 361, was to complain that a verdict was returned the effect that in an action for statu- against him for a less amount than tory nuisance the mere fact that the that sustained by the evidence. verdict was for less than the jury So, it has been held that where might have found under the undis- inadequate damages are awarded for puted evidence was harmless error, the negligence of a railroad company and not a matter of which the de- in running over live stock, although feated party could complain.

the verdict is rendered for a The rule was applied in Jose v. much less than is warranted by the Stetson (1899) 20 Wash. 648, 56 Pac. evidence, the defendant against whom 397, an action for negligence, wherein it is rendered may not complain, as the appellant assigned as error that he is not wronged or injured by the the verdict for the respondents should error. Kansas City, M. & B. R. Co. have been for $1,925, instead of v. Doggett (1889) 67 Miss. 250, 7 So. $1,000 which the jury found. The 278; Illinois C. R. Co. v. Abernathey court held that the error, operating (1901) 106 Tenn. 722, 64 S. W. 3. to the injury of the respondents, And the same rule has been applied was no ground of error available to where inadequate recovery was had the appellants, who were not injured for the negligence of a carrier resultthereby.

ing in injury to or death of live stock In Coyne v. Galland (1922) Mo. in transit. Moyers v. Illinois C. App. - 243 S. W. 376, the plaintiff R. Co. (1915) 197 Ill. App. 179; St. sought to recover for damages to his Louis, S. F. & T. R. Co. v. Fenley premises, due to the overflow of water (1908) Tex. Civ. App. 118 S. W. from defective drains. Holding that 845. the defendant could not complain of A like ruling was made in Trowan inadequate verdict, it was said: bridge v. Charleston & W. R. Co. “The general rule is that a party will (1911) 90 S. C. 183, 73 S. E. 78, an not be heard to complain in an ap

action for damage for delay of perpellate court that the verdict ren- ishable goods. dered against him was not as large In Rogers v. Fowler (1908) 151 as it should have been.”

Mich. 485, 115 N. W. 469, the court The decision handed down in Saylor applied the rule as follows: "It is v. Montesano (1895) 11 Wash. 328, 39 claimed that the plaintiff's testimony Pac, 653, followed the general rule. all tended to show damages aggregat

sum

ing from $345 to $395, whereas a that the appellant had no right to verdict was returned for $240. It is complain of the inadequacy of the true that the witnesses who placed appellee's recovery. an estimate upon the value of the The inadequacy of the verdict for property destroyed fixed a value of the plaintiff in Ross v. Rose (1920) $345 to $395. But on cross-examina. 109 Wash. 273, 186 Pac. 892, was held tion their testimony showed that the no ground for the granting of a new barn in question was very old and in trial on application of the defendant, a state of dilapidation, and it is in an action to recover damages for quite within the range of possibility negligently driving an automobile that the jury, undertaking to exercise past a horse and causing it to plunge their own judgment as to values, down an embankment. accepted the description of the prop- Tort against person. erty, and fixed their own estimate

"A person against whom a judgof value placed upon such description,

ment has been recovered cannot rerather than to accept the figures given

verse it on the ground that it is less by witnesses. Whether this was or

than it should have been." Corcoran was not proper, we do not think the

v. Harran (1882) 55 Wis. 120, 12 N. defendants are damaged by a verdict

W. 468 (action for assault and batfor a less sum than the evidence

tery). showed the plaintiff entitled to."

In Adams v. St. Louis & S. F. R. Co. The record in Rauen v. Chicago R. (1910) 149 Mo. App. 278, 130 S. W. Co. (1917) 205 Ill. App. 464, showed 48, the courts applied the rule where that the undisputed evidence as to

recovery was had for an assault on a damages to the plaintiff's automobile,

passenger by a railroad employee. caused by a collision with one of the The rule was also applied in Taylor defendant's street cars, was $566.21. Bros. v. Hearn (1910) 63 Tex. Civ. The jury rendered a verdict for $390. App. 333, 133 S. W. 301, an action for The defendant complained that the false imprisonment and malicious verdict was manifestly a compromise, prosecution. and that the recovery, if had at all, Where the appellant was found was inadequate. The court held that guilty of negligence resulting in the plaintiff alone could complain. death, he cannot complain that the In the case of Fowler v. Aberdeen

recovery against him should have R. Co. (1919) 41 S. D. 563, 171 N. W. been for a larger amount. Atlanta 816, the defendant objected to a ver- & B. Air-Line R. Co. v. Weaver (1904) dict for $100 recovered against it for 121 Ga. 466, 49 S. E. 291; Louisville alleged negligence in colliding with & N. R. Co. v. Thomas (1906) 87 Miss. the plaintiff's automobile. It was held 600, 40 So. 257.

R. E. La G.

W. L. HUGHES, Appt.,

V.
FRANK HOLMAN et al., Respts.

Oregon Supreme Court (Dept. No. 1) - March 4, 1924.

(- Or. - 223 Pac. 730.) Evidence - burden of proof – alienation of affections.

1. To entitle a man to recover damages from members of a religious sect for alienation of the affections of his wife by inviting her to services of the sect, he must produce substantial evidence that the acts of which he complains were committed maliciously or from improper motives implying malice in law, and with the design and intent to alienate the affections of the wife, and that the acts were the controlling cause in producing the result complained of.

[See note on this question beginning on page 1115.]

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I- Or. - 223 Pao. 730.) Husband and wife right to inter viting his wife to take part in the refere with worship of God.

ligious services of the sect, if there is 2. A man cannot interfere with the nothing unlawful, improper, or imfreedom of his wife to worship God moral in such services, notwithstandaccording to the dictates of her own ing the objections of the husband. reason and conscience.

Trial power to set aside verdict. [See 13 R. C. L. 985.]

5. The court may set aside a ver- duty to aid husband in controlling dict which is not supported by the eviactions of wife.

dence, and also any judgment entered 3. Members of a religious sect are thereon. under no obligation to co-operate with [See 20 R. C. L. 277.] a man to prevent his wife from at

- necessity of granting new trial. tending the services at their place 6. A court, in setting aside a verof worship.

dict for plaintiff for lack of evidence - right to invite wife to attend serv- to support it, may enter judgment for ices.

defendant, where, if the case were 4. Members of a religious sect are to be sent back, the result must necesnot personally liable to a man for in- sarily be the same.

APPEAL by plaintiff from an order of the Circuit Court for Polk County (Belt, J.) setting aside a verdict in his favor and entering judgment for defendants in an action brought to recover damages for alleged alienation by defendants of the affections of plaintiff's wife. Affirmed.

The facts are stated in the opinion of the court.
Mr. W. C. Winslow for appellant. a cancer, with which she was suffer-

Messrs. Henry S. Westbrook, Walde- ing, that such medical treatment had mar Seton, E. K. Piasecki, and Frank

been offered to her by the plaintiff Schlegel for respondents.

from skilled and expert physicians, McCourt, J., delivered the opinion and that on account of the refusal of of the court:

plaintiff's wife to submit to the This is an action instituted by same, which refusal was induced by plaintiff against the defendants to the defendants, her health has been recover damages for the alleged greatly injured, and she has been realienation by defendants of the duced to such a physical condition as affections of plaintiff's wife. Plain- to be no longer able to care for her tiff, by his complaint, charges in sub- children or perform other household stance that on or about the 1st day and family duties, and her malady of November, 1919, the defendants has become incurable, all to the damentered into a conspiracy to alienate age of plaintiff in the sum of $20,the affections of plaintiff's wife 000. from plaintiff, and to disrupt plain- Defendants, by their answer, detiff's home, and to destroy the peace nied all the allegations of plaintiff's and tranquillity thereof, and that complaint, and affirmatively alleged the defendants, in furtherance of that defendants, in conjunction with such conspiracy, did, by artifice, in- other persons, meet in the city of ducement, design, and persuasion, Dallas, Oregon, to worship God, and alienate the affections of plaintiff's that their meeting place is known as wife, thereby causing her to disre- the Apostolic Faith Mission; that gard and ignore plaintiff in all plaintiff's wife has for some time attransactions and all relations, and to tended said meetings and joined in disregard and ignore her family said worship of her own free will duties as a mother to her children. and volition, and without any inPlaintiff further averred that the ducement, coercion, or other infludefendants, by teaching plaintiff's ence exerted upon her by the defendwife false doctrines and theories, in- ants, or either or any of them, and duced her to refrain from medical that the estrangement between treatment for the relief and cure of plaintiff and his said wife, if any

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