Daily capital journal. (Salem, Oregon) 1903-1919, 1911-08-08

of the week the plaintiff and her
family were preparing to leave, when
the defendant, Sabrina Epler, ap-
peared upon the scene and seized a
roll of bedding belonging to the
plaintiff. A scuffie ensued, each con-
tending for the bedding, when Mrs.
Epler called for her husband who
appeared armed with a hatchet. In
the melee consequent upon these ac-
tions, the plaintiff received the injur-
les Of which she complains. At the
trial the plaintiff also gave evidence
Of some quarrels between herself
and Mrs. Epler concerning plaintiffs
children and about Mrs. Epler rum
maging in plaintiffs trunk.
One thing of which the appellants
complain is that in his closing argu-
ment to the jury counsel for plain
tiff used the following language:
And this action arose out of a crime
and these people were tried down in
the municipal court, a few days af-
ter this thing happened, for a crime
We don't know how that trial turned
out-theY objected to us showing It,
/ bul NuVg WCIC lIltu lOT
The defendants, by their counsel OBJ
jected to this language but no ruling
of the court was called for and none
made as to this conduct of plaintiffs
| counsel. There was testimony on
both sides given without objection
about criminal prosecution of the de-
PENDANTS in the municipal court.
There was abundant testimony, also,
tending to prove an assault made by
the defendants upon the plaintiff. An
assault is a crime, and the comment
of the counsel upon the action Of the
defendant characterizing it as a
crime, was legitimate discussion OF
the evidence. In our Judgment nc
error is shown in this respect.
The action of the court in permit
ting plaintiff to give evidence about
the difficulties occurring between
herself and Mrs. Epler over the
plaintiffs children Is also assigned
as error. This testimony was ad
mitted on the acquiescence of defen
dant's counsel for the purpose o
, showing malice on the part of tn,
: defendant, Mrs. Epler, and havini
| thus concurred, the defendants ar
: in no position to object here on tha
= point. The same reason, that O
! proving malice, will Justify the ad
? mission of heated words used on tn
: occasion of the plaintiffs discover
e ing Mrs. Epler rummaging in plain
: tiffs trunk.
Appellants further urge that tn
: court was at fault in allowing tn
plaintif to show what Mrs. Eple
= said at the trial in the municipa
q court about whether the plaintiff an
S her husband owed the former an
e room rent at the time she undertoo
r to seize plaintiffs bedding This wa
O admissible for the purpose of show
e ing that her action in taking tn
d property was without justificatio
, and that her accompanying assau
r upon the plaintiff was devoid of el
e cuse. The plaintiff was also a
II lowed to show that at the trial
I. the municipal court the Judge aske
d Mrs. Epler, after she admitted thu
e the plaintiff did not owe her an,
s. thing We'll then, what did va
n want to take the goods for?" an
Mrs. Epler answered that she wantt
Is to take it so that If they did owe ht
e anything she would have it. OF tn
t. the appellants complain on Il
s. ground that 1t was irrelevant al
Is immaterial. They claim that ii
a language of the Judge had nothing
Id do with the dispute in this case, b
1t is permissible under Sec Il
n subdivision 8, L. O. L., to show ii
r declaration or act of another in Il
presence and in the observation
party and his conduct in RELATE
thereto This conversation betwet
the judge and Mrs. Epler was clear
81 proper to show that her condu
with reference to the bedding and Il
accompanying assault was inexcus
BILE.
u The principal contention of the d
"a PENDANTS is that the court erred
a submitting to the jury the questiC
of exemplary damages. Defendan
b maintain that the complaint dot
not state facts sufficient to authori
an investigation of that question |
the jury and that it gives no mott
to the defendant that such a clai
/"