Turner v. Learman
Turner v. Learman
Opinion of the Court
This action was brought by the plaintiff: against the defendant to recover damages for alienation of his wife’s affections and for criminal conversation. The court directed a verdict in defendant’s favor, and from a judgment entered thereon the plaintiff appeals.
Direct proof of adultery is seldom obtainable. It must ordinarily be proven by circumstantial evidence. The jury might legitimately believe the evidence of the plaintiff and disbelieve that of the defendant, where there was a conflict. If different inferences could be legitimately drawn from the evidence, those most favorable to the plaintiff might be drawn. If the inference of guilt might properly be drawn from the whole evidence in the case, it presented a jury question. It is only where there is an entire lack of credible evidence that a court is warranted in taking a case from a jury. These propositions are elementary and authorities need not be cited to support them. The sole question in the case is whether on the evidence adduced the jury would be justified
Archie Turner, the ten-yéar-old son of the plaintiff, testified that the defendant stayed at his father’s house during the hunting season of 1910; that during that time his mother went to the root house and defendant followed her in a short time and went inside and shut the door; that he (the witness) went to the root house and tried to get in and they told him to go to the house; that in a little while he tried again to get in and they would not let him in the second time; that they were in the root house a good half hour and that the door was locked. The plaintiff was away from home at the time. The episode is not denied by the defendant, but he makes a plausible, and it may well be a truthful, explanation of it. He says he was employed by plaintiff in the fall of 1910' and that he was directed by him to salt a deer and that this is what he was doing in the root house with plaintiff’s wife. He also said that the door was not locked and that Mrs. Turner told Archie when he tried to get in to go to the house and mind the baby. There was a direct conflict in the testimony as to whether or not the door was locked, and the jury was at liberty to believe the boy if it saw fit. If it was locked, that circumstance might not be conclusive of the defendant’s guilt, but it would require a good deal of explanation which a jury might be slow to take at its face value, even where the door had a spring lock.
The boy further testified that when his father was gone the defendant would get him and his sister, who was younger than he, to go out and gather leaves and would give them a cent a sack for them and that he did not do this when plaintiff was home. Also that when the father was gone defendant would be in the house a good deal with his mother, but it was otherwise when the father was home.
The plaintiff testified that prior to 1910 the defendant did
“Did you see Will the day I left? Write back by return mail and let me know if he is at Kempster yet. You tell him- there is somebody down here that wants him to, come on the next train, and be sure. She told me to tell him, so you tell him for me. Say, Sadie, keep this letter out of sight of Bert and to yourself, because he gets madder than h — 1 when I write to any one. .,. . Now answer right away and let me know about Will. His poor mother is so lonesome she cries for him. She says: If Will ain’t at your place have Orves' write to him or see him for hex’. Now, Sadie, keep still about this; the old man gave me h — 1 all the way to Antigo that day I left.”
The inference might well be drawn from thi¡3 letter that the “somebody” who was -anxious to have “Will” take the next train was none other than the writer of the letter. Mrs. Vaughn showed the letter to the defendant the day she received it, and, while it may be a mere coincidence, lie did leave on the next train and went to his father’s home, where the plaintiff’s wife was staying. He says he stayed but a shoi’t time,' but he worked not far from there. The plaintiff further testified that in July he went to where his wife was staying to induce her to return, but that he did not succeed and he returned home the next day. He went to see her again in August and remained over night. He said his wife sent for the defendant -and he came in the evening, and while he
No one of these circumstances standing alone is very significant. This may be said generally in reference to the separate links in what may be a very satisfactory chain of circumstantial evidence. It may well be that the defendant is blameless. He may be the one pursued rather than the pursuer. If so, he did not try very hard to make his escape. Some of the evidence referred to is contradicted. Some of it is explained and some of it is difficult to explain. We do not care to comment on it at length or to emphasize any part of it. Inasmuch as a new trial must be had, comments might work prejudice. We do not point to any one item of evidence as making a case for the plaintiff. What we do hold is that the jury had the right to pass on the credibility of the evidence if conflicting inferences might reasonably be drawn therefrom, and that, taking the entire testimony offered, dif
By the Court. — Judgment reversed, and cause remanded for a new trial
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