In an action for alienation of his wife's affections, the plaintiff recovered judgment against the defendant. The defendant claims a reversal is required because the failure to strike out certain evidence, the insufficiency of the evidence to support a verdict for the plaintiff and the failure of the trial court to set aside the verdict infected the award with prejudicial error.
The questioned testimony came during the plaintiff's main case. He testified to the effect that he observed that his wife, at a time relevant to this litigation and during a period of non-access by him, gained, then suddenly lost, certain physical characteristics comparable to those that had occurred when she had been pregnant with their three children. All of this was testified to without objection.
A question was then propounded concerning the relationship of the time those characteristics were lost and a vacation period the wife was alleged to have taken. This inquiry was objected to as to form because of the use of the word 'pregnant.' The objection was ultimately overruled, in part, at least, because this same phraseology had already been used in previous examination without objection. An objection to the content was unavailable, even if made, since the same subject-matter had already been testified to without objection.
Other than the single objection as to form, the defendant raised no question as to any of this testimony relating to the physical appearance of Mrs. Rash at this time. At the close of the plaintiff's case, however, the defendant moved to have all this testimony stricken. Upon the denial of that motion he moved for a mistrial, which was also refused. At the close of all the evidence he renewed his motion to strike this testimony.