Gilmore v. Gilmore

173 N.W. 865, 42 S.D. 236, 1919 S.D. LEXIS 123

• Court: South Dakota Supreme Court
• Decided: August 15, 1919
• Docket: File No. 4210
• Status: Published

Opinions

POLLRY, J.

This action is brought for the recovery of damages alleged to have been sustained -by plaintiff because of the alienation of the affections of her husband.' by the defendant. Plaintiff and one W. C. Gilmore were married in 1910, and defendants are the father and mother of said W. C. Gilmore. The complaint alleges that in 1915 the defendants circulated certain false reports reflecting upon the virtue and chastity of the plaintiff, andi that, as a result of such reports, plaintiff’s said husband-deserted and abandoned her, and that she was thereby deprived of his support, comfort, and affection. Verdict and judgment tv ere for plaintiff, and from such judgment, and an. order overruling their motion for a new trial, defendants appeal.

While the 'respondent was on the witness stand the following question'was put to her by her counsel:

. “You may state what your husband said to you in regard to w'hy he had written this letter and why he done as he did.”

This was objected to on the ground, among others, that it called for hearsay testimony. The objection was overruled, and the witness answered thqt.her husband told her that his parents had told him that he (plaintiff’s husband) was not the father of plaintiff’s little boy, then only a few months old. Appellants then-moved to strike out the answer on the same ground as urged- in. the objection. This motion w^as' denied, and this ruling is assigned as error. The facts disclosed by this testimony are regarded of vital importance to respondent’s case, and it is contended by respondent that such testimony was admissible for the purpose of showing the reason for certain conduct on the part of respondent’s husband; rvhile, on the other hand, it is contended. by appellant that such testimonyis pure hearsay and should have -been excluded 'by the court. :

[1, 2] Respondent contends that this declaration- of her husband was in the nature of a verbal act' indicative of the state of h‘is féelings at the time of his abandonment of her, and in support of her contention cites the following cases: Hardwick v. Hardwick, 130 Iowa, 230, 106 N. W. 639; Sessions v. Little, 9 N. H. 271; Sexton v. Sexton, 129 Iowa 487, 105 N. W. 314, 2 L. R. A. (N. S.) 708; Baker v. Baker, 16 Abb. N. C. (N. Y.) 293, Williams v. Williams, 20 Colo. 51, 37 Pac. 614; Nevins v. Nevins, 68 Kan. 410, 75 Pac. 492; Horner v. Yance, 93 Wis. 352, 67 N. W. 720; Perry v. Lovejoy, 49 Mich. 529, 14 N. W. 485; McKenzie v. Lautenschlager, 113 Mich. 171, 71 N. W. 489. The rule is well settled that statements and declarations of a person may be shown by a third party when the feelings or state of mind of the person making such statements are material to the issues. “Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Those expressions are the natural reflexes of what it might be impossible to show by other testimony. If there be such .other testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As independent, explanatory, or corroborative evidence, it is often indispensable to the due administration of justice. Such declarations are regarded as verbal acts, and are as competent as. any other testimony, when relevant to the issue. Their truth or falsity is an inquiry for the jury.” Travelers’ Ins. Co. v. Mosley, 8 Wall. 397, 19 L. Ed. 437. But such declarations, to be admissible, must be in the nature of res gestae. They “must have been made at the time of the act done, which they are supposed to characterize, and must have been well calculated to unfold the nature and quality of the facts they wire intended' to explain, and so to harmonize with them as obviously to constitute one transaction.” Meek et al. v. Perry et al., 36 Miss. 261. “Such declaration derives credit and importance as forming a part of the transaction itself, and is included in the surrounding circumstances, which may always -be given in eviden. e to the jury with the principal fact. There must be a main or principal fact or transaction, and only such declarations are admissible as grow out of the principal transaction, illustrate its character, and contemporary with it and derive some degree of credit from it.” Lund et al. v. Tyngsborough, 9 Cush. (Mass.) 36. “According to the authorities, if such declaration was made at the time the act was done', and is calculated to explain the character, nature, or quality of the facts constituting the act and its effects, so as to unfold and harmonize them as parts of the same transaction, then such a declaration must be regarded as a part of the res gestae, and may always be shown to the jury along with the principal facts.” Frink & Co. v. Coe, 4 G. Greene (Iowa) 555, 61 Am. Dec. 141. To form a part of the res gestae, such declarations “must have been made at the time of the act done, which they are supposed to characterize, and have been well calculated to unfold the nature and quality of the facts they were intended to explain, and so to harmonize with them as obviously to constitute , one transaction.” Enos v. Tuttle, 3 Conn. 247. This subject is treated at length by Prof. Wigmore, and, at section 1776, that author says:

“Since the words are used only as parts of the whole act,, filling out and giving significance to the conduct, it is obvious that the words must be contemporaneous with the conduct, or, in the usual phrase, must accompany the act.”

Tested by these rules, the evidence in question was pure hearsay.

The letter referred to in the question had been written by the husband and’ received by the plaintiff' some two weeks prior to-the conversation referred to in the question, ’but had not been written until after the husband had had the alleged conversation with defendants in which defendants are claimed to have assailed plaintiff’s chastity and virtue. There is nothing in the letter, however, that shows any loss of affection on the part of the husband, nor was there anything said or done by him during said conversation to indicate that he had lost confidence in her, or intended ■ to abandon or desert her. So far as anything said to the plaintiff by her husband is concerned, the intention to abandon her' was formed-at some subsequent time, and for some cause other than that assigned by her. This being the case, the words attributed to him by plaintiff in answer to the question complained of did not accompany the act of abandoning her, nor constitute any part thereof, nor was it contemporaneous with that act.

[3] There was some evidence introduced' tending to show that one or both of the defendants had made disparaging remarks relative to plaintiff’s character to parties other than her husband, but it was not shown, nor even intimated by any evidence in the case, that the making of such remarks was eve’r brought to the knowledge of her husband. 'Such remarks, therefore, could have had no effect upon his affection for plaintiff, and could not have influenced him in abandoning her; and, for that reason, such evidence was wholly incompetent for any purpose.

[4] . At the close of plaintiff’s case, there was no competent evidence before the jury to support either of her causes of action, and defendant’s motion for a directed verdict should have been granted.

The judgment and order appealed from are- reversed.