Opinion
Decided May 13, 1927.
Alienation of affections — New trial not warranted upon ground of newly discovered evidence — Plaintiff's divorce proceeding not discovered by defendant before verdict returned — Affidavit of plaintiff's perjury by testifying contrary to divorce petition insufficient, when — Verdict for plaintiff not against weight of evidence — Newly discovered evidence would not have required different verdict.
1. Newly discovered evidence that plaintiff in action for alienation of her husband's affections sued him for divorce over eleven years before trial on ground of extreme cruelty, held not to warrant new trial on motion filed only three days after verdict for plaintiff, in absence of showing that it could not have been discovered before trial.
2. Affidavit that plaintiff, in suit for alienation of her husband's affections, committed perjury in testifying, contrary to statements in her prior petition for divorce, that she and her husband had never separated nor had any serious quarrels, and that she had not sued him for divorce, held not to warrant new trial, where she was not asked about divorce proceedings and admitted that they frequently quarreled, but testified that they had never separated, and defendant's counsel did not further question her as to matter.
3. Verdict for plaintiff, in action for alienation of her husband's affections, held not against the weight of evidence justifying new trial.
4. Newly discovered evidence that plaintiff, in action for alienation of her husband's affections, sued him for divorce on grounds of extreme cruelty, over eleven years before trial, and denied in trial of alienation suit that they had ever separated or that she had sued him for divorce, held not such as would have required or resulted in different verdict so as to authorize new trial after verdict for plaintiff.
ERROR: Court of Appeals for Sandusky county.
Mr. H.C. De Ran, for plaintiff in error.
Messrs. Culbert Culbert, for defendant in error.
Plaintiff in error, Hazel Streeter, seeks the reversal of a judgment entered by the court of common pleas in favor of defendant in error Ceylon Heilman, upon a verdict of $2,500 returned by the jury at the trial had in that court. We will hereafter refer to defendant in error and plaintiff in error as plaintiff and defendant respectively. Plaintiff sought to recover damages of defendant in the sum of $10,000 for the alleged alienation by defendant of the affections of Lester Heilman for his wife, the plaintiff.
Defendant claims that the verdict of the jury is against the weight of the evidence, and that the trial court erred in failing to grant her motion for a new trial on the ground stated therein of newly discovered evidence. The latter alleged error is that upon which counsel for defendant chiefly relied in argument and in his brief. The question of the weight of the evidence depended largely, if not entirely, upon the probable probative effect of the alleged newly discovered evidence, had it been produced at the trial.
In her affidavit, filed in support of this ground of her motion, defendant states, in substance, that on March 17, 1915, the plaintiff commenced an action for divorce against her husband, Lester Heilman, alleging in her petition therefor that her husband had been guilty of extreme cruelty toward her by striking and by frequently swearing at and cursing her, and calling her vile and indecent names in the presence of others, and had been guilty of improper conduct by kicking and striking their daughter, then 7 years of age, and swearing and cursing in her presence to which by affidavit thereon, plaintiff made oath that the facts stated therein were true.
The defendant states also, that the affidavit so made by her, that her counsel had made diligent and extended search and examination of the records of the court, but had been unable, prior to the trial of the instant case, to find any record of such divorce action of plaintiff.
The action now under review by this court was tried in the court of common pleas on November 9, 1926, and the verdict therein was returned on November 10, 1926. The motion of defendant for a new trial was filed on November 13 following, and, although the affidavit of defendant was not executed until November 20, 1926, we must assume that the alleged discovery in question had been made at the time of the preparation and filing of the motion, since the particular ground thereof, to support which the affidavit was filed, was included therein. If this claimed important evidence could be discovered within three days after the trial, it would seem that it might have been at least one day before that time.
Defendant also stated in her affidavit that plaintiff committed perjury, in that her testimony was in direct conflict with the statements made in her petition for divorce, in that she had denied that herself and husband had at any time separated, that they had any quarrels of a serious nature, and that she had sued him for a divorce.
We have carefully examined the evidence, and we do not find that Mrs. Heilman was asked any question concerning the divorce proceedings, or any direct question as to the specific conduct of her husband as alleged in her divorce petition, but find that she did not deny, and most positively admitted, that her husband and herself had frequently quarreled. As to their having separated, the following, among other questions, were asked and answered:
"Q. You and your husband separated several times? A. No, sir.
"Q. Never? A. No, sir; we lived —"
All of those asked of Mrs. Heilman of similar import, other than the second question above quoted, included, as does the first above, something more than the mere question as to whether herself and husband had at any time separated. The record shows her to have been interrupted and not to have completed her answer to the second question. In what way she was intending to qualify or to explain the "never" is not shown. In any event, there is no statement in her petition for divorce that Mr. Heilman and herself had at any time or were then separated. If defendant's counsel, as stated in defendant's affidavit, had searched for the record of this divorce petition prior to the trial of the instant case, then he was at least sufficiently advised to have questioned plaintiff concerning the matter had he deemed it of importance.
An examination of the evidence does not disclose that the answers of plaintiff to questions asked of her denied in any respect any of the facts alleged by her in her divorce petition. She volunteered no information, but did answer consistently therewith such questions as were asked.
At the trial the defendant was called by plaintiff for cross-examination, and other than her testimony so given no evidence was offered in her behalf. Her testimony practically admitted the improper relations of herself and Heilman, as charged in plaintiff's amended petition, and shows that at the time of the trial he was residing at her home; and the fact, in evidence, that defendant and Heilman lived together in Lorain from November 17, 1925, to January 19, 1926, was not denied.
We do not find that the verdict of the jury is against the weight of the evidence, nor that the alleged newly discovered evidence, if offered and received in evidence, would have required, or resulted in, a different verdict.
In our judgment there was no abuse of discretion by the trial judge in overruling the motion for a new trial upon the urged ground of newly discovered evidence.
The judgment of the court of common pleas is affirmed.
Judgment affirmed.
RICHARDS and WILLIAMS, JJ., concur.