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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 sum 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
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 judg. of 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.,
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.]
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.
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 exists, was wholly completed and aside the verdict, and holding the consummated long prior to the time same for naught." plaintiff's wife started to worship A brief statement of the situation with the defendants, and that the and the acts of the defendants, updefendants, at no time and in no on which it is sought to charge demanner contributed to the aliena- fendants with liability as shown by tion of the affections of plaintiff's the evidence, is necessary in order to wife from plaintiff, and that they make clear the decision of the quesdid not at any time advise or coun- tions presented by plaintiff's assignsel plaintiff's wife regarding her ments of error. It is important to private life, material matters, or her note in that connection that, during relations with her husband.
the trial, defendants seasonably inThe affirmative matter in the an- terposed a motion for nonsuit and swer is denied by plaintiff's reply. also a motion to direct the jury to
The cause being at issue, a jury return a verdict in favor of the detrial was had therein, resulting in a fendants, both of which motions verdict in favor of plaintiff, and were overruled by the court. against all the defendants, in the The relations of the parties and sum of $2,500. The circuit court did those phases of their several charnot enter judgment upon the forego- acters which furnish a clue to the ing verdict, as directed by $ 201, Or. motive or intent accompanying the Laws, but upon its own motion en- acts hereinafter specified, committered the following order and judg- ted by each of them respectively, ment:
may be gathered from the uncontro"Wherefore it appearing to the verted facts in the case and the reacourt that the above verdict is con- sonable deductions to be drawn trary to law in that there is no evi- therefrom. dence to support the same or any The defendants, all of whom are evidence to show that there was a presently named and described, for conspiracy or a concerted design on many years, and during the period the part of the defendants, or any covered by this controversy, attendof them, to alienate the plaintiff's ed in Dallas, Oregon, the mission or wife's affections; and, for a further place of worship of a religious reason at this time, it appears to the organization known as the Apostolic court that the complaint herein fails Faith, the tenets and creed of which to state facts sufficient to constitute they in good faith devoutly believed a cause of action :
and earnestly endeavored to follow. "Therefore, it is ordered and ad- Among the tenets of the creed of the judged that the said verdict be and Apostolic Faith is the power of is hereby set aside and held for Jesus Christ to heal bodily ailments, naught, that said action be dis- and that divorce is forbidden by the missed, and that defendants recover Word of God. against plaintiff herein their costs Frank Holman is a farmer, who and disbursements, taxed and al- has lived near Dallas for twenty-one lowed at $"
Clem Swenson is a fruit Plaintiff appeals from the order
grower, who has lived in the vicinity and judgment above set forth, and
of Dallas for nine years. Mrs.
Frank Splawn is an elderly woman, assigns error as follows: "I. The court erred in not enter
who lives across the street from ing judgment upon the verdict in
plaintiff, and has known him since favor of appellant and against re
he was a boy. Mrs. C. A. Rice lives
adjacent to plaintiff's house, and is a spondents.
sister of plaintiff's wife. "II. The court erred in entering Plaintiff and his wife were marjudgment for the respondents and ried June 15, 1910. From the date against appellant.
of their marriage until the time of “III. The court erred in setting the trial, plaintiff and his wife lived (- 0r. , 223 Pac. 730.) together in Dallas, Oregon. They started to the mission in company did not separate or live apart at any with Mrs. Splawn and Mrs. Rice. time. Two children, a girl and a
Plaintiff interfered and objected to boy, ten and seven years of age, re- his wife attending the mission, and spectively, both living, were born of vociferously abused Mrs. Splawn the marriage. During the time cov- and Mrs. Rice, and charged them ered by the transactions in this case with interfering in his family afplaintiff and his wife resided in a fairs. Mrs. Splawn and Mrs. Rice dwelling house erected upon a lot both protested that they did not have which plaintiff's wife owned at the any desire or intention of meddling time of their marriage, and toward in his family affairs, and asserted the erection of which she contrib- that their invitation to Mrs. Hughes uted a substantial sum of money. to attend the mission was not given Plaintiff earned a living for himself with that purpose. Plaintiff's wife and family by working as a common thereupon yielded to plaintiff's oblaborer, most of the time in saw- jections, and returned with him to mills. Plaintiff is a quick-tempered, their home across the street. rough-spoken, violent man, who ex- Thereafter in February, 1919, pects and attempts to exact from his plaintiff's wife was informed by a wife complete obedience, not only to physician whom she had consulted, his instructions and directions, but that she was suffering from cancer to his whims as well. He is un- of the breast. She was very much manly, belligerent, and truculent in perturbed and downcast by this the presence of women, and of men news, and supposed that she would who, in case of physical violence not live long. Following the disoffered them, practise the Scriptural covery that his wife was afflicted injunction to turn the other cheek. with cancer, plaintiff had some
The evidence fairly indicates that conversation with Dr. Bollman, of plaintiff's wife is a dutiful woman, Dallas, concerning treatment of his reasonably submissive to plaintiff's wife by an X-ray specialist in demands, and quite as patient with Portland, and plaintiff claims, in his explosive temper and unmanly his testimony, that he made arconduct as could be expected of any rangements for such treatment, self-respecting wife. Her health and his wife refused to submit to had not been good since the birth of the same. During this time, plainher first child.
tiff's wife, as might be expected, The only evidence offered by suffered from low spirits and implaintiff in support of his charge paired physical energy, and on acthat defendants alienated his wife's count thereof lacked interest in her affections is contained in the testi- household affairs for some months. mony of plaintiff, given as a witness Her sister, the defendant Mrs. C. A. in his own behalf. We will now Rice, advised plaintiff's wife that state the substance of that testi- she had better not depend on the mony.
doctors, but trust God for her health. At the time of the marriage of Following that conversation, and plaintiff and his wife, or shortly in the month of November, 1919, thereafter, plaintiff exacted a prom- plaintiff and his wife commenced ise from his wife that she would not attending religious services at the attend the religious services of the Apostolic Faith Mission in Dallas, Apostolic Faith.
and plaintiff, together with his wife, In February, 1918, Mrs. Splawn continued to attend those meetings and Mrs. Rice invited plaintiff's wife and to join in the services there conto attend the religious services con- ducted for several months. Plainducted by the members of the tiff's wife entered heartily and Apostolic Faith at their mission in faithfully into the services in the Dallas. Plaintiff's wife accepted earnest hope that thereby she might the invitation, and in the evening invoke a Divine Power that would