The opinion of the court was delivered by
Smith, J. :
In her petition in the court below Flora E. Eagon alleged that on December 17, 1894, she was married to James S. Eagon; that she lived happily with him, without discord or disagreement, until October 10, 1895, when the defendant John M. Eagon, father of her husband, by means of misrepresentations, statements and inducements then and previously made to his son, purposely, wilfully and maliciously procured his son to separate himself from plaintiff, to neglect his marital duties, and wholly to cease to live with her, thus alienating the affections of her husband from her and causing a permanent separation. A trial was had, with a verdict and judgment; for the plaintiff below. She produced at the trial witnesses to conversations had by the defendant John M. Eagon with his son, her husband, wherein the defendant below had made promises to and threats toward his son, thus inducing him to separate from the plaintiff. The nature of this testimony is shown by an extract from the deposition of one Go-forth : “Well, Jim asked his pa for some money; Mr. Eagon said, ‘What do you want with it, Jim?’ [699]*699‘ Why,’ he says, ‘ I want to go to housekeeping.’ Mr. Eagon says, ‘You shan’t have a cent of my money as long as you live with that woman.’ ” The defendant below offered to show, by his own testimony and that of another witness, that, in conversations with his son during the time when he was charged with making. such inducements, he used language toward him of directly opposite import from that testified to by the plaintiff’s witnesses ; that he told the son to bring his wife to his house, and, on another occasion, that he ought to live with her, etc. Such proof was excluded by the court on the ground that defendant’s statements to his son were self-serving declarations, made in his own interest, and that they were hearsay and no part of the res gestee.
It is not contended that such conversations with his son favorable to himself, which the defendant below sought to bring before the jury, were parts of conversations testified to by the witnesses for the plaintiff below, or tending to explain what he said to her witnesses, but were statements made by him to his son at other times, possibly days or weeks prior or subsequent to the declarations of defendant heard by the witnesses of plaintiff below. The testimony offered did not tend to explain or illustrate the main fact, which was what defendant below said against the marital interests of his daughter-in-law. Contradictory words would fall outside of the res gestee, and hence were incompetent as evidence. The main fact being the hostile attitude of the defendant below, his declarations showing expressions of friendship were not calculated to explain or to characterize such acts and conduct as were shown by the evidence introduced by plaintiff. Greenleaf, in his work on Evidence, in defining res gestee, says : “The principal points of at[700]*700tention are whether the circumstances and declarations offered in proof were contemporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character.” (Vol. 1, § 108.) Res gestae are.matters incidental to a main fact, and explanatory of it, including acts and words which are so closely connected with a main fact as really to constitute a part of it, and without a knowledge of which the main fact might not be properly understoood. Where the res gesta is a declaration of a particular kind, another declaration made at another time, in no way related to it, and of directly opposing character, is not explanatory; it is contradictory.
The main fact under consideration here being whether the defendant below.had, by hostile acts or words, alienated the affections of his son from his son’s wife, statements made at other times than those testified to by the plaintiff’s witnesses would not be contemporaneous with the main fact, and for that reason were objectionable. Nor is such testimony admissible for the purpose of showing the state of mind of the defendant below toward the plaintiff in the action. The defendant’s state of mind was not the question to be litigated, and the court below would embark upon an unprofitable voyage of psychological discovery, resulting in no return of practical value, in permitting the defendant to show, by relating conversations with his son, the state of his mind as affecting his conduct in the case stated.
A question of practice is involved in the refusal of the trial court to permit counsel for the defendant below to make the offer of proof above mentioned. He was required to ask the witness questions calling forth the testimony he desired to get before the jury. [701]*701This requirement has left the record of the testimony-sought to be elicited in an unsatisfactory condition. It is difficult in most cases to present to the court explicitly in the form of questions the exact proof offered. Where the questions do not clearly show the nature of the testimony an offer of proof ought to be received. In fact, the precise question involved can thus be more clearly presented to the trial court and preserved in the record for review. We approve the practice of making the tender. (The State v. Barker, 43 Kan. 262, 23 Pac. 575.) In Elliot, App. Proc., § 743, it is said :
“ In the examination-in-chief the exclusion of testimony is not available as error unless the party makes an offer to prove the facts which he assumes that -his question will elicit. Where an objection is properly interposed more must be done, in cases where the objection is sustained, than to ask the question ; the party producing the witness and insisting upon the question must state what he proposes to prove by the witness. This is necessary in order to enable the court to determine whether the testimony is competent and material. The record must show the offer, and show also the presence of the witness. The court will not rule upon mere abstract questions, and hence it must appear that there was an actual offer and a present ability to adduce the proffered testimony. The facts proposed tobe proved must be specifically stated. . . . In short, there should be satisfactory indications of willingness, x’eadiness, good faith, and present ability.”
We think the court should have permitted counsel for the defendant below to make axi offer to prove those facts which were so imperfectly developed by the several questions asked of the witnesses.
The plaintiff below was permitted to testify concerning the actions and manner of her husband at a time when he and his father were in a freight-car at [702]*702Overbrook. This was to the effect that the former came to the car door and took a position indicating that he was about to step out, that he looked at his father, turned around, and went back into the car. It is claimed that this was incompetent, as constituting a communication between husband and wife. We do not think so. The communication, if any was shown, was between father and son. It is contended that the wife is not disqualified from giving testimony of communications had with her by her husband in the presence and hearing of third persons ; that it is the privacy of the confidential relation between husband and wife that the law seeks to protect. This contention is unsound. The statute disqualifies both husband and wife. The disqualification goes to the witness, not the subject-matter of the testimony.
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The opinion of the court was delivered by
Smith, J. :
In her petition in the court below Flora E. Eagon alleged that on December 17, 1894, she was married to James S. Eagon; that she lived happily with him, without discord or disagreement, until October 10, 1895, when the defendant John M. Eagon, father of her husband, by means of misrepresentations, statements and inducements then and previously made to his son, purposely, wilfully and maliciously procured his son to separate himself from plaintiff, to neglect his marital duties, and wholly to cease to live with her, thus alienating the affections of her husband from her and causing a permanent separation. A trial was had, with a verdict and judgment; for the plaintiff below. She produced at the trial witnesses to conversations had by the defendant John M. Eagon with his son, her husband, wherein the defendant below had made promises to and threats toward his son, thus inducing him to separate from the plaintiff. The nature of this testimony is shown by an extract from the deposition of one Go-forth : “Well, Jim asked his pa for some money; Mr. Eagon said, ‘What do you want with it, Jim?’ [699]*699‘ Why,’ he says, ‘ I want to go to housekeeping.’ Mr. Eagon says, ‘You shan’t have a cent of my money as long as you live with that woman.’ ” The defendant below offered to show, by his own testimony and that of another witness, that, in conversations with his son during the time when he was charged with making. such inducements, he used language toward him of directly opposite import from that testified to by the plaintiff’s witnesses ; that he told the son to bring his wife to his house, and, on another occasion, that he ought to live with her, etc. Such proof was excluded by the court on the ground that defendant’s statements to his son were self-serving declarations, made in his own interest, and that they were hearsay and no part of the res gestee.
It is not contended that such conversations with his son favorable to himself, which the defendant below sought to bring before the jury, were parts of conversations testified to by the witnesses for the plaintiff below, or tending to explain what he said to her witnesses, but were statements made by him to his son at other times, possibly days or weeks prior or subsequent to the declarations of defendant heard by the witnesses of plaintiff below. The testimony offered did not tend to explain or illustrate the main fact, which was what defendant below said against the marital interests of his daughter-in-law. Contradictory words would fall outside of the res gestee, and hence were incompetent as evidence. The main fact being the hostile attitude of the defendant below, his declarations showing expressions of friendship were not calculated to explain or to characterize such acts and conduct as were shown by the evidence introduced by plaintiff. Greenleaf, in his work on Evidence, in defining res gestee, says : “The principal points of at[700]*700tention are whether the circumstances and declarations offered in proof were contemporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character.” (Vol. 1, § 108.) Res gestae are.matters incidental to a main fact, and explanatory of it, including acts and words which are so closely connected with a main fact as really to constitute a part of it, and without a knowledge of which the main fact might not be properly understoood. Where the res gesta is a declaration of a particular kind, another declaration made at another time, in no way related to it, and of directly opposing character, is not explanatory; it is contradictory.
The main fact under consideration here being whether the defendant below.had, by hostile acts or words, alienated the affections of his son from his son’s wife, statements made at other times than those testified to by the plaintiff’s witnesses would not be contemporaneous with the main fact, and for that reason were objectionable. Nor is such testimony admissible for the purpose of showing the state of mind of the defendant below toward the plaintiff in the action. The defendant’s state of mind was not the question to be litigated, and the court below would embark upon an unprofitable voyage of psychological discovery, resulting in no return of practical value, in permitting the defendant to show, by relating conversations with his son, the state of his mind as affecting his conduct in the case stated.
A question of practice is involved in the refusal of the trial court to permit counsel for the defendant below to make the offer of proof above mentioned. He was required to ask the witness questions calling forth the testimony he desired to get before the jury. [701]*701This requirement has left the record of the testimony-sought to be elicited in an unsatisfactory condition. It is difficult in most cases to present to the court explicitly in the form of questions the exact proof offered. Where the questions do not clearly show the nature of the testimony an offer of proof ought to be received. In fact, the precise question involved can thus be more clearly presented to the trial court and preserved in the record for review. We approve the practice of making the tender. (The State v. Barker, 43 Kan. 262, 23 Pac. 575.) In Elliot, App. Proc., § 743, it is said :
“ In the examination-in-chief the exclusion of testimony is not available as error unless the party makes an offer to prove the facts which he assumes that -his question will elicit. Where an objection is properly interposed more must be done, in cases where the objection is sustained, than to ask the question ; the party producing the witness and insisting upon the question must state what he proposes to prove by the witness. This is necessary in order to enable the court to determine whether the testimony is competent and material. The record must show the offer, and show also the presence of the witness. The court will not rule upon mere abstract questions, and hence it must appear that there was an actual offer and a present ability to adduce the proffered testimony. The facts proposed tobe proved must be specifically stated. . . . In short, there should be satisfactory indications of willingness, x’eadiness, good faith, and present ability.”
We think the court should have permitted counsel for the defendant below to make axi offer to prove those facts which were so imperfectly developed by the several questions asked of the witnesses.
The plaintiff below was permitted to testify concerning the actions and manner of her husband at a time when he and his father were in a freight-car at [702]*702Overbrook. This was to the effect that the former came to the car door and took a position indicating that he was about to step out, that he looked at his father, turned around, and went back into the car. It is claimed that this was incompetent, as constituting a communication between husband and wife. We do not think so. The communication, if any was shown, was between father and son. It is contended that the wife is not disqualified from giving testimony of communications had with her by her husband in the presence and hearing of third persons ; that it is the privacy of the confidential relation between husband and wife that the law seeks to protect. This contention is unsound. The statute disqualifies both husband and wife. The disqualification goes to the witness, not the subject-matter of the testimony. However public the communication may be, and however numerous the hearers, husband and wife cannot be heard in court concerning it. (The State v. Buffington, 20 Kan. 599.)
Complaint is made that the trial court permitted the plaintiff below to testify that she entertained a strong affection for her husband. This was no more than the fortifying of a presumption. The proof was unnecessary, but its admission was not error. In Bailey v. Bailey, 94 Iowa, 598, 63 N. W. 341 it is said : ‘‘ The state of her mind and the ardor of her love are not material except upon the question of damages. The lawT indulges a presumption, no doubt, that the husband had affection for his wife, and it rests with the defense to prove that he did not have.”
■ The sixth instruction to the jury by the court was erroneous. It reads :
“ I instruct you, gentlemen of the jury, that a parent is not liable in damages to his son’s wife for ad[703]*703vising tlie son to separate from his wife, if such advice be prompted by the proper parental motives'for his son’s welfare and happiness, instead of malice ; but you are further instructed that such advice will be malicious toward the son’s wife, and no protection to the parent, unless the wife was guilty of acts which could be charged as grounds of divorce against her.”
This instruction took from the consideration of the jury the question of malice unless the wife was guilty of acts which could be charged as grounds of divorce against her. This rule is too harsh. Suppose a case where a father, by his advice and counsel, induced his married daughter to leave a worthless husband and return to the parental roof. It might be that the husband had wilfully deserted his wife for eleven months, yet, under the law laid down by the trial court, the action of the father would be malicious and recovery of damages could be had against him-by the husband; for to constitute a ground of divorce the abandonment must have continued for one year. Again, ‘ ‘ the conviction of a felony and imprisonment in the penitentiary therefor subsequent to the marriage ” is ground for a divorce. Under the law of said instruction, inducements held out by the father, causing his daughter to desert a husband convicted of a felony, but before imprisonment in the penitentiary therefor, would be malicious and actionable. The husband might be guilty of such neglect of his marital duties as not to amount in law to gross neglect, which is one of the grounds for divorce, yet there might be many cases of such dereliction which would justify a parent in advising his daughter to submit no longer to indignities falling short of furnishing grounds for divorce. In actions of this kind the question must be whether the father was moved by malice or by proper parental motives for the welfare and happiness of his [704]*704child.. He may have erred in his advice as to the best course to be taken in dealing with so difficult a question, but he is entitled in every case to have a jury pass upon the integrity of his intentions and determine the existence of bad motives. In Tucker v. Tucker, 74 Miss. 93, 32 L. R. A. 623, 19 South 955, it is said:
“In every §uit of this character, the principal inquiry is, From what motive did the father act? Was it malicious, or was it inspired by a proper parental regard for the welfare and happiness of his child? The instinct and conscience unite to impose upon every parent the duty of watching over, caring for and counseling and advising the child at every period of life, upon marriage and after marriage, whenever the necessities of the child’s situation require or justify such action on the parent’s part. The reciprocal obligations of parent and child last through life, and the duty of discharging these divinely implanted obligations is not and cannot be destroyed by the child’s marriage. Multiplied instances will occur to the mind in which a failure of a father to speak and to act would be regarded with horror. A daughter who has recklessly contracted an undesirable marriage with a man utterly unworthy .to be the husband of a virtuous woman, against the wish and over the vigorous protest of the father, and who has, by such ill-starred union, been brought to wretchedness and humiliation and want of the ordinary comforts of life, may surely be advised, counseled and cared for in the parental home, even against the will and expressed wish of the unfaithful husband.’’
By the instruction given, there being no grounds of divorce shown to exist in favor of the husband against the wife, the jury were told that the action of the-father in advising the son to leave her was malicious, and no discretion as to the existence of malice was left to the jury after they had found that the defend[705]*705ant below had used language toward his son tending to induce him to leave the defendant in error. Malice cannot be inferred from the fact that no ground for divorce existed. The father stands in a very different relation toward his married son or daughter than a stranger would occupy toward the same persons. Natural affection would imply that the advice and counsel extended to them were prompted by good motives, and unworthy objects cannot be presumed. They ought positively to be shown or necessarily deduced from the facts and circumstances detailed.(Gernerd v. Gernerd, 185 Pa. St. 233, 39 Atl. 84.) In Reed v. Reed, 6 Ind. App. 317, 33 N. E. 638, it is said :
“When trouble and disagreements arise between the married pair, the most natural promptings of the child direct it to find solace and' advice under the parental roof. All legitimate presumptions in such cases must be that the parent will act only for the best interests of the child. The law recognizes the right of the parent in such cases to advise the son or daughter; and when such advice is given in good faith, and results in a separation; the act does not give the injured party a right of action. In such a case the motives of the parent are presumed good until the contrary is made to appear. These rules have generally been applied in cases where the suit was brought by the husband for the alienation of his wife; and we see no reason why they should not, with proper modification, prevail where the wife is the plaintiff/'
The instruction above set out was clearly erroneous, and for that reason the judgment of the court below is reversed, and a new trial ordered.
Doster, C. J., and Johnston, J., concurring.