{ "id": 5448254, "name": "Ray H. Scowden, Plaintiff in Error, v. G. Taphorn, Defendant in Error", "name_abbreviation": "Scowden v. Taphorn", "decision_date": "1919-06-06", "docket_number": "", "first_page": "394", "last_page": "398", "citations": [ { "type": "official", "cite": "214 Ill. App. 394" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "28 Ill. App. 153", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": 0 }, { "cite": "58 Ill. 366", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5235173 ], "opinion_index": 0, "case_paths": [ "/ill/58/0366-01" ] }, { "cite": "211 Ill. 578", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3306676 ], "opinion_index": 0, "case_paths": [ "/ill/211/0578-01" ] }, { "cite": "240 Ill. 238", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3422743 ], "opinion_index": 0, "case_paths": [ "/ill/240/0238-01" ] }, { "cite": "193 Ill. 630", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 } ], "analysis": { "cardinality": 445, "char_count": 9622, "ocr_confidence": 0.495, "pagerank": { "raw": 4.3776877221195043e-08, "percentile": 0.27481660127675395 }, "sha256": "f7e603277ccd71c4bab62ab1de36a30246131ba9d714c824b0fc1cecaf557100", "simhash": "1:cb473799de8efcdd", "word_count": 1664 }, "last_updated": "2023-07-14T20:35:57.308743+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Ray H. Scowden, Plaintiff in Error, v. G. Taphorn, Defendant in Error." ], "opinions": [ { "text": "Mr. Justice Boggs\ndelivered the opinion of the court.\nAn action on the case was brought by plaintiff in error, hereafter called plaintiff, against defendant in error, hereafter called defendant, for the recovery of damages for the alleged alienation of plaintiff\u2019s wife. At the close of all the evidence, both for the plaintiff and defendant, the court on motion of defendant directed a verdict in his favor and rendered judgment thereon against plaintiff in bar of action and for costs. To reverse said judgment this writ of error is prosecuted.\nThe principal ground relied upon by plaintiff for a reversal of this case is that the court erred in directing a verdict for defendant. The evidence on the part of plaintiff is to the effect that plaintiff\u2019s wife, who had been receiving treatments from the defendant as her physician for a misplaced womb, went to the office of the defendant on Sunday afternoon in December, 1917. Plaintiff, who was an electrician, had left with his dinner box saying he was going to his work, but instead of doing so he went to the building in which defendant had his office and was in and around said building until along about 3 or 3:30 in the afternoon when his wife arrived, going to the office of the defendant. Plaintiff\u2019s wife remained in the reception room of the defendant for a short time, and then with defendant passed into what is known as room 8, used by the defendant as his library. Plaintiff testified he was in the hallway and saw them pass to this room and that he listened at the door and that he heard defendant and his wife talking and that he heard kissing and deep breathing and movements. He further testified that he heard defendant ask plaintiff\u2019s wife if it felt good, or words to that effect, and that she replied that it did; that, he, the plaintiff, then broke open the door and found the defendant and his wife in the room, his wife lying on the floor on defendant\u2019s overcoat; that they were both practically undressed, with the exception of their underwear, and that the doctor was over plaintiff\u2019s wife at the time plaintiff came into the room. Except for the conversation that took place between plaintiff and defendant when plaintiff came into said room, which is not necessary for us to go into for a determination of the errors assigned, and evidence to the effect that plaintiff ceased living with his wife after the time in question, the foregoing in effect was the evidence offered on behalf of the plaintiff.\nNo motion was made at the close of plaintiff\u2019s evidence for a directed verdict, but defendant went on and offered testimony to the effect that he was simply giving plaintiff\u2019s wife treatment and that he was not guilty of any improper relations with her. Defendant also offered evidence to the effect that plaintiff\u2019s wife, prior to the time in question, had always borne a good reputation for chastity in that community.\nPlaintiff\u2019s wife testified on behalf of defendant over the objections of plaintiff to the effect that never, either on the day in question or at any other time, had she had improper relations with the defendant, and never had had sexual intercourse with him at any time. At the close of defendant\u2019s evidence a motion for a directed verdict for defendant was sustained by the court and a verdict and judgment were rendered as above set forth.\nThe only question to be determined on the record in this case, on the assignment of error with reference to the directing of the verdict, is, as to whether the evidence offered by plaintiff, with all the reasonable inferences to be drawn therefrom, fairly tended to prove the allegations of his declaration. If it does, then the court erred in directing a verdict.\nWhile conceding the above statement of the law to be correct, and while further conceding that evidence offered by defendant, which is purely contradictory of plaintiff\u2019s evidence, is not to be considered in determining- the question of whether the evidence supports the averments of the declaration, still it is contended by defendant\u2019s counsel that if there is affirmative evidence, or evidence of an affirmative defense, offered by the defendant, that this may be considered on a motion at the close of all of the evidence for a directed verdict on the part of the defendant. Whether or not the contention of the defendant with reference to an affirmative defense being so considered on a motion for a directed verdict at the close of all the evidence is correct, we do not think in this case that that question arises. The evidence offered on behalf of the defendant was merely contradictory or conflicting with the evidence offered on behalf of the plaintiff, except the evidence offered by defendant as to the good character of plaintiff\u2019s wife. It is therefore only necessary for the court to determine as to whether or not plaintiff\u2019s evidence, with all reasonable inferences to be drawn therefrom, fairly tended to prove his case. We think that it did, and hold that the court erred in directing a verdict for the defendant. Joliet R. Co. v. McPherson, 193 Ill. 630; Balsewicz v. Chicago, B. & Q. R. Co., 240 Ill. 238-244.\nThe court on a motion to direct a verdict should not weigh the evidence as it does on a motion for a new trial, but should simply determine as to whether or not there is any evidence in the record fairly tending to prove the allegations of plaintiff\u2019s declaration. Woodman v. Illinois Trust & Savings Bank, 211 Ill. 578.\nIt is also contended by plaintiff that the court erred in allowing plaintiff\u2019s wife to testify on behalf of the defendant over objection. We are of the opinion and so hold that the court erred in this ruling. Plaintiff\u2019s wife is not a competent witness in this behalf either on the part of the defendant or on the part of the plaintiff. Section 5, ch. 51, Hurd\u2019s Bev. St. (J. & A. }[ 5522), provides among other things: \u201cHo husband or wife shall, by virtue of section 1 of this act, be rendered competent to testify for or against each other as to any transaction or conversation occurring during their marriage, whether called as a witness during the existence of the marriage, or after its dissolution, except in cases where the wife would, if unmarried, be plaintiff or defendant, or where the cause of action grows out of a personal wrong or injury done by one to the other or grows out of the neglect of the husband to furnish the wife with a suitable support; and except in cases where the litigation shall be concerning the separate property of the wife, and suits for divorce; and except also in actions upon policies of insurance of property, so far as relates to the amount and value of the property alleged to be injured or destroyed, * * * and value thereof, or in all matters of business transactions where the transaction was had and conducted by such married woman as the agent of her husband.\u201d\n\u2022 This section of the statute specifically holds that the husband or the wife shall not be rendered competent to testify for or against each other as to any transaction or conversation occurring during the marital life, except in the specific instances mentioned in that section of the statute, under none of which exceptions does plaintiff\u2019s wife come. Mitchinson v. Gross, 58 Ill. 366; Groom v. Parables, 28 Ill. App. 153.\nFor the reasons above set forth the judgment of the trial court will be reversed and-said cause will be remanded.\nReversed and remanded.", "type": "majority", "author": "Mr. Justice Boggs" } ], "attorneys": [ "Burton & Burton and James A. Lynn, for plaintiff in error.", "John F. McGinnis, W. P. Boynton and B. J. 0 \u2019Neill, for defendant in error." ], "corrections": "", "head_matter": "Ray H. Scowden, Plaintiff in Error, v. G. Taphorn, Defendant in Error.\n1. Husband and wife, \u00a7 280 \u2014when direction of verdict for defendant, sued for alienation, will he error. Where the sole testimony of a husband who was plaintiff in a suit for the alienation of his wife, with all the reasonable inferences to be drawn therefrom, fairly tended to prove the allegations of his declaration, and where the evidence offered by defendant was purely contradictory excepting that as to the reputation of plaintiff\u2019s wife, it was error to direct a verdict for defendant at the close of all the evidence.\n2. Husband and wife, \u00a7 280*\u2014when directed verdict for defendant, sued for alienation, will he set aside. In an action to recover damages for the alienation of plaintiff\u2019s wife, a directed verdict for defendant was set aside, where plaintiff was the sole witness as to occurrences between defendant and plaintiff\u2019s wife, and where the evidence offered by defendant was purely contradictory of plaintiff\u2019s evidence, excepting that offered as to the wife\u2019s good character.\n3. Trial, \u00a7 216*\u2014what court should determine on motion to direct verdict. On motion to direct a verdict, the court should not weigh the evidence as it does on a motion for new trial, but should simply determine as to whether or not there is any evidence in the record fairly tending to prove the allegations of the declaration.\n4. Witnesses, \u00a7 31*\u2014when error to admit testimony of wife in action for alienation. Under Hurd\u2019s Rev. St. ch. 51, see., 5 (J. & A. 1i 5522), relating to the competency of husband or wife as witnesses for one another, it was error to allow plaintiff\u2019s wife to testify over objection on behalf of defendant in the action in question for the alienation of plaintiff\u2019s wife.\nError to the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1919.\nReversed and remanded.\nOpinion filed June 6, 1919.\nBurton & Burton and James A. Lynn, for plaintiff in error.\nJohn F. McGinnis, W. P. Boynton and B. J. 0 \u2019Neill, for defendant in error.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number." }, "file_name": "0394-01", "first_page_order": 426, "last_page_order": 430 }