Bourne v. Bourne , 43 Cal. App. 516 ( 1919 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The plaintiff, Marie Bourne, brought this action against Harry S. Bourne and Hope Bourne, the parents of her husband, Ralph Bourne, to recover damages for the alleged alienation of her husband's affections. The case was tried before a jury, and there was a verdict and judgment for twelve thousand five hundred dollars in plaintiff's favor. The defendants appeal, basing their claim for reversal on insufficiency of the evidence to support a verdict, and error of the court in giving and refusing instructions and in the admission of evidence.

The weak point in plaintiff's case is insufficiency of the evidence that the desertion of plaintiff by her husband was caused or influenced by the fault of the defendants or that the conduct of defendants was influenced by malice. Eliminating the hearsay evidence of all that the plaintiff and her witnesses said that the husband, Ralph Bourne, said that his parents said — and there is not a scintilla of evidence worthy of serious consideration that either the father or mother ever by word or deed tried to bring about a separation between the plaintiff and their son — there is no evidence, up to the day that Ralph Bourne deserted the plaintiff and left his home and wife — outside of this hearsay testimony — other than one isolated instance, that the father, Harry S. Bourne, ever displayed in any manner any ill will toward his daughter-in-law, or evinced any disposition that would suggest a desire to alienate from her the affections of her husband. And there are only infrequent expressions of criticism and ill-feeling toward her on the part of the mother on which to base any inference of adverse or hostile feeling on the mother's part, and these gain most of their significance when considered against the background of the hearsay testimony referred to.

This hearsay testimony, as has been indicated, consisted of the testimony of the plaintiff, supplemented by that of some of her witnesses, as to declarations which they claimed the husband, Ralph Bourne, made in their presence, of criticism and unkind remarks, and attempts to influence him against his wife, made by his parents, chiefly his mother. The following excerpts from the transcript of the evidence will serve to illustrate the character of this testimony as to alleged declarations of Ralph Bourne: "He told me that they spoke to him about coming back, and that he could not possibly get along over in Glendale because he couldn't earn his living; . . . and they said they would do anything he wanted if he would come back to Eagle Rock, and Ralph was very indignant about it, and he told me about it, and said for me not to mind what they said because they could never get him away from me. . . . Well, Ralph was very angry with his folks because he always told me never to mind what his folks said about me, because he didn't believe them; that he would never leave me for any reason in the world; . . . that he would never leave me to go back to his folks. . . . Sometimes he wouldn't tell me all that was said until later. He used to say that he didn't like to tell me everything that they said, because he said it would make me feel bad if I knew that they were talking about me. . . . Well, at first he was very indignant about it; he didn't like to talk about it at all, because he thought it would make me feel bad, and he would always tell me that he cared more for me than anything in the world, and he would usually be very much more affectionate after he had had a talk with his folks about it; and one instance toward the last, about two weeks before he went away, he sort of sided in with his folks; he sort of drifted to their side as the time went on. . . . I told him several times that if they talked to him so much that perhaps he would leave me and go back to them. He said he never would. He said nothing in the world could ever make him leave me. . . . Ralph told me several times that they had offered him inducements; they told him that they would send him to college and pay all his bills if he would leave me — put him on his feet. . . . They always said he would never get along while he was married to me. . . . Well, at first he was very indignant with his folks, and then toward the last he sort of seemed to be drifting toward them — told me I ought to see things the way they saw them; and that was about the last that we were living together. . . . Mrs. Bourne talked to Ralph and called me every name that she could think of, and told Ralph that I was absolutely no good, and he would be better off if he had never seen me."

[1] There was a good deal more hearsay testimony of this character. It all went in over the objections of defendants' counsel that it was incompetent and hearsay, and under a ruling of the court that it was admitted only for the purpose of showing the state of the husband's feelings during this period; and the court expressly instructed the jury that they were to receive it for no other purpose, and that it was not competent evidence to prove any of the conduct or statements therein attributed to the defendants.

It is probable that the court was correct in its ruling, although there were some of these hearsay narratives attributed to the husband, which gave purported damaging statements of his parents, that were not accompanied by any evidence of his own feelings in the matter. A fair consideration of the rulings on the extent to which such declarations may be used in evidence, in Cripe v. Cripe, 170 Cal. 91, [148 P. 520], Humphrey v.Pope, 1 Cal.App. 375, [82 P. 223]; Barlow v. Barnes,172 Cal. 98, [155 P. 457], and Jameson v. Tully, 178 Cal. 380, [173 P. 577], are in accord with the ruling of the trial court on this question. [2] It is undoubtedly the law that where testimony is competent and material for any purpose under the issues on trial, it is admissible for that purpose, although it may be inadmissible and prejudicial when applied to other issues to which it is pertinent. (14 R. C. L. 52; Trentonetc. Ry Co. v. Cooper, 60 N.J.L. 219, [64 Am. St. Rep. 592, 38 L.R.A. 637, 37 A. 730]; MacDougall v. Maguire,35 Cal. 274, [95 Am. Dec. 98]; Birmingham Trust Sav. Co. v.Currey, 75 Ala. 373, [Ann. Cas. 1914D, 81, 57 So. 962];Diamond Rubber Co. v. Harryman, 41 Colo. 415, [15 L.R.A. (N.S.) 775, 92 P. 922]; Baustian v. Young, 152 Mo. 317, [75 Am. St. Rep. 462, 53 S.W. 921]; Illinois etc. R. R. Co. v.Houchins, 121 Ky. 526, [123 Am. St. Rep. 205, 1 L.R.A. (N.S.) 375, 89 S.W. 530].) In this case the court did the best it could in safeguarding the defendants from prejudicial consequences of this testimony by instructing the jury to disregard it for any purpose other than that of showing the state of the husband's feelings. There was abundant other evidence of Ralph Bourne's affection for and loyalty to his wife during all the period covered by these hearsay declarations; and, indeed, there was no dispute on that point. In view of the seriously prejudicial nature of these statements on the main issue in the case, as to the conduct and motives of defendants, plaintiff's counsel were taking unnecessary chances of error in insisting upon the introduction of these hearsay declarations. The introduction of this testimony presents a feature of the case which at least invites a careful scrutiny of the other evidence directed to this issue, in determining whether the jury was justified in finding the defendants guilty of separating this young married couple. In view of the absence of any direct evidence of ill will or malign influence on the part of defendants, and the testimony of the husband and both the defendants that no such occurrences took place as were referred to in the hearsay declarations, it is difficult to escape the conviction that the jury was prejudicially influenced by considering the hearsay statements in disregard of the instructions of the court. In the argument by their brief on this appeal, respondent's counsel, speaking of these declarations, suggest their force as a determinative influence in the mind of the jury as to the fact of inducements being offered by the defendants to alienate Ralph's affection from his wife. They say: "The nature of these declarations, and the accompanying manifestations of affection for the wife and indignation against the parents, throw light upon the nature,extent, and force of the inducements or threats which must havebeen held out or made to Ralph Bourne in order to impel him to treat his wife so cruelly and desert her with an intention never to return." Again, it is said: "They point to the degree,amount, and kind of persuasion and inducements that must havebeen held out to Ralph Bourne in order to induce him to desert his wife."

It is apparent, from the undisputed evidence, that the marriage of this young couple took place with the full consent and approval of the defendants. The plaintiff, before the marriage, was a frequent guest at defendants' home, and sometimes spent the night with them. They were present at the marriage ceremony, and provided a home for the young couple with the declared purpose of ultimately deeding it to them. The mother-in-law spoke in high terms of approval of the new daughter-in-law, stating to one of plaintiff's witnesses that Ralph had married her "because he knew she was a good, pure girl." Both the parents wanted the young couple in their company, and the mother was particularly solicitous to have the companionship and affection of her son's wife. If any criticism can be made of the attitude of the defendants toward their daughter-in-law during the first few months of the marriage, it was for over-zealousness and officiousness for her welfare. They probably were not always wise or discreet, and, according to plaintiff's testimony, were inclined to impose upon the young couple too dictatorial a supervision of their conduct and affairs; but that anything was said or done by these defendants which was not meant in kindness and for the good of both their son and his wife during the first months of their marriage, is not seriously contended.

The plaintiff was eighteen years of age and her husband was twenty-one when they were married in May, 1913. He was the only child of the defendants. There was nothing worthy of serious consideration that occurred in the family to disturb the harmony of any of their relations, particularly as relates to the conduct of defendants, for several months. There had been some criticism, which was neither unkindly nor perhaps unmerited, regarding the plaintiff's disposition to "gad," as the witness termed it; and the plaintiff had, on two or three occasions, been unreasonably resentful of what she considered officious solicitude of her husband's parents in her domestic affairs. But nothing serious occurred until about the 1st of March, 1914, nearly a year after the marriage. The plaintiff was away from her home in Eagle Rock on one of her frequent visits to her friends in Glendale, when her husband, who was working for his father in Eagle Rock, met with an automobile accident. The Ford car which he was driving overturned, and he was quite badly strained and bruised. He telephoned his wife, and she, instead of coming home to him, had him come to her friend's home in Glendale, where she was staying to dinner. While he was there, his parents heard of the accident, and were very much concerned, not knowing how badly he was hurt. They telephoned to Glendale, and afterward met the young couple at the street-car when they returned home in the evening. By this time Ralph, the husband of plaintiff, was suffering a good deal from his injuries, and could walk only with difficulty. The party went together to defendants' home, which was near that of the young people, and there defendants urged them to come in and stay all night, where they had better accommodations, could telephone for a doctor, if needed, and where the parents could assist in caring for their son. This the young people refused to do, and a quarrel ensued. The testimony is very conflicting as to what occurred, as narrated by the plaintiff on the one side and her husband and defendants on the other. But, accepting plaintiff's version of the event against the three other witnesses, everybody was wrought up and excited. The father insisted on the son remaining, and commanded the daughter-in-law to come along into the house, and, as she claims, caught hold of her wrists and tried to drawher in. She also testified that the mother-in-law called her a snake and a rat, and said that she was not even human. Plaintiff, in turn, used some rough language, and, it is admitted, invited her father-in-law to "go to hell." Plaintiff and her husband eventually went to their own home, and a few days thereafter, influenced by this quarrel, moved from there to Glendale, where the husband obtained employment away from his parents.

This unfortunate episode, which was evidently the result of the nervous strain under which all of them were laboring, and the natural anxiety of the parents over the accident to their son, they not knowing how serious his injuries might be, ought never to have made a breach in the family relations, irrespective of who was the greater offender. That the parents tried to avoid any such result is evident from the fact that they at once commenced to make overtures to the young people, and showed a desire to conciliate them and to heal the breach. This effort continued throughout the several months that plaintiff and her husband remained at Glendale. During all this time plaintiff maintained a hostile attitude toward the defendants, and evidently resented her husband's inclination to a reconciliation. Ultimately, through the repeated advances of the parents, plaintiff and her husband accepted the olive branch, and, after an exchange of visits, an arrangement was agreed on whereby plaintiff and her husband went back to Eagle Rock to live with defendants until their cottage, which had been rented, would be available for their occupancy, the son again taking employment with his father. This was in January, 1915. The parties continued to live together in this way until some time in March, apparently in unusually amicable relations, for two families occupying the same house. About the only criticism plaintiff has to make of the defendants during this period is that the parents were too insistent on being in her company and desiring her society.

Then came the second, and final, serious episode in the relations of these two families — the result of an evident misunderstanding, for which the plaintiff was apparently as much to blame as anyone else. Mrs. Bourne, the elder, had a woman friend — a Mrs. Visel — who frequently visited at her home, and with whom she was talking one day about her daughter-in-law's skill in sewing. She made a remark about her sewing which all parties agree was perfectly harmless, and more in the nature of praise than of criticism. Mrs. Visel repeated this to plaintiff in a way to leave the impression that the mother-in-law was finding fault. Plaintiff then gave her version of the matter to her husband. He, in turn, repeated it to his father; and the father took his wife to task for having made an unkindly criticism of the daughter-in-law. By the time the story got back to the mother, she received the impression that Mrs. Visel had misrepresented the incident and was trying to make trouble in the family. Returning to her home, she found Mrs. Visel there, and, in the presence of all the parties to this action, called Mrs. Visel to account, and accused her of misrepresentation and mischief-making. The plaintiff took Mrs. Visel's part, and all the women evidently became much excited, and a good deal of harsh language was indulged in; and the elder Mrs. Bourne ordered Mrs. Visel to leave the house. Plaintiff decided to go with her, and the young husband followed his wife. It is entirely obvious that the conduct of the elder Mrs. Bourne in this matter was influenced by her anxiety to keep on good terms with her daughter-in-law. In fact, throughout this period, while the two families were together, there seemed to be an almost feverish solicitude on the part of the parents to cultivate the goodwill of the plaintiff; and that it was not entirely on the son's account is shown by the efforts of the mother to have the plaintiff in her company, and to elicit some sentiment of daughterly regard.

This second separation of the families occurred about two years after the marriage of the young people and about four months before the plaintiff was deserted. During all this time the young husband sided with his wife in whatever differences occurred, and was admittedly deeply in love with her, and, according to the wife's testimony, expressed great indignation at anything like a hostile attitude toward her on the part of his parents. If there had been any attempt on the part of the parents to alienate him from his wife, it had, up to this time, been a signal failure.

After this second episode, the young people again moved into apartments of their own, but the son continued in the employment of his father. Friendly relations were not resumed with the plaintiff, although the parents made overtures in that direction by taking the young people products of their home garden, and inviting them to join in auto trips. The plaintiff repulsed these advances, and displayed a spirit of unrelenting hostility to the husband's parents. She evidently, as her husband testifies, resented any approaches to social intimacy with them on the part of their son, and virtually admitted that she insisted upon his giving up all family relations with them. Reading between the lines of plaintiff's own testimony, it is evident that this matter became one of some tension and bitterness between them, she insisting and he refusing to entirely give up friendly relations with his parents. The following questions and answers from plaintiff's testimony point to these conclusions: "Q. Haven't you told your husband many times that if he did not side with you and give up his parents you would leave him? A. No, sir; not until about a month before he left. Q. Now, you say that it was not until the last month that you lived together that you did tell your husband that he could take a choice between you and the parents? A. I don't know that I ever used those words to him. Q. Well, what was said during the last month about your leaving him unless he would side with you and give up his parents? A. I think one evening Ralph came home . . . and I asked him where he had been, and he said that he had worked late; and I asked him if he hadn't been with his folks, and he finally owned up and said that he had; and I told Ralph that I didn't think he was doing the right thing by me to see his folks and not telling me about it; and I told Ralph that I thought he ought to have some consideration for me. I don't think that I said, 'I will leave you if you don't give up your folks for me.' I am sure I didn't, not in those words." And again: "Q. When was the first time you told Ralph you thought he ought to give up his folks because they were talking about you? A. During the last month or month and a half that we were together. Q. Do you mean to say that you didn't say that to him long before that? A. We talked it over in a general way. I never used those words; just sort of general talk. Q. Well, now, you supposed, did you not, after this scene in the house with Mrs. Visel present, that he had given up his folks entirely, didn't you? A. Not entirely, because he was going to work there, continue work. Q. And you knew, of course, he was going to continue to work with his father, but you didn't think there was going to be a continuation of the social relations between him and his parents? A. I knew there would be no relations between the four of us." The testimony of the plaintiff's husband was that there was, during the last three or four months, bitter and repeated quarrels between them because he refused to give up all affectionate relations with his parents; and the above admissions of plaintiff, and other circumstances shown in evidence, tend strongly to corroborate this.

It is quite evident that, for reasons good or bad, the plaintiff had assumed an attitude of implacable enmity toward her parents-in-law. Indeed, it seems to be on this attitude on her part that plaintiff's counsel largely base their inference that the parents sought to alienate her husband from her. She did not like them. She refused to be reconciled with them. Therefore, they must have resented it and tried to take her husband from her. That is not a fair legal inference, and it finds no support in the evidence. As has been suggested, there is some evidence of isolated criticisms and unfriendly comment by the mother. Mrs. Visel was the principal witness to these incidents, and as she and the elder Bournes were not on speaking terms after the final break between the families in March, whatever she may have heard must have occurred prior to that time, and was, as one might say, condoned by the subsequent reconciliation and era of good feeling between the parties. Mrs. Visel testified that at one time the elder Mrs. Bourne said of the plaintiff that she was a snake, and that she wasn't human. This is the same language that the plaintiff herself testified that her mother-in-law used at the time of the trouble over the automobile accident, and Mrs. Visel locates her conversation at about the same time; so the words used on both occasions probably arose out of the same grievance. Mrs. Visel also testifies that after the quarrel, and while the young folks were living in Glendale, the mother often expressed regret that her son was away from her, and told how unhappy she was; "that it was ridiculous that he was away; that he belonged with them, and that he would come if it wasn't for Marie; that it was her ambition to get him back; that he belonged at home, and that was where she was going to have him if it was the last thing she ever did." She seems to have accomplished this purpose, and succeeded in getting both Ralph and Marie at home, where all of them lived very amicably together for some time; and the means she used to secure the return of her son and his wife were friendliness and conciliation toward both. Mrs. Visel further testified that at the time of the second separation of the families, in the quarrel in which she was involved, the elder Mrs. Bourne accused her of telling lies to cause trouble and accused Marie of telling lies, too, in order to keep her husband's affection, and that Ralph came in during the quarrel "and tried to bring about peace; he tried to quiet his mother down, and also his wife."

Mrs. McDonald, the plaintiff's mother, testified that on one occasion the elder Mrs. Bourne spent the evening with her and talked about Marie all the time. This was in the winter of 1914, evidently while the young people were living at Glendale. She testifies that Mrs. Bourne said that Marie was not a good housekeeper; that it would have been better for Ralph if he had never married her, and that he would never get along. Mrs. McDonald also testified that she saw the defendant Harry Bourne the day after the trouble over the automobile accident, and that he said: "Ralph was going with another girl at the same time as with Marie, and that he wished Ralph had married the other girl. He said she was not a good housekeeper, and was extravagant, and that Ralph would have been better off if he had not married her."

There may have been some other statements of like nature, but the foregoing is substantially the sum total of any expression, by act or word, prior to the date of the separation of plaintiff and her husband, tending to show malice or ill will on the part of the defendants toward the plaintiff. This and the two quarrels they had, and the fact that the plaintiff herself had given them little cause to feel kindly toward her, is the sole basis for the inference that the defendants had willfully and maliciously alienated their son's affections from his wife or influenced him to desert her. There is no direct evidence whatever that they ever, by any word or conduct directed to or in the presence of their son, attempted to influence his relations with his wife.

There is only one other circumstance in this unfortunate family tragedy tending to connect the defendants with the separation of their son from his wife. On the 10th of July, 1915, the desertion took place. Ralph Bourne, in the absence of his wife from home on that day, went to their apartment, packed up his belongings and some of the wedding presents he and his wife had received at their marriage, and departed. He took an east-bound train for New York, and did not return to Los Angeles until about the time of this trial. It is admitted that on the 7th or 8th of July he disclosed to his parents his intention to leave, and asked for money for his trip. He and both the defendants testify that the parents objected to his separation from his wife, and urged upon him his duty to his marriage relations. There is no evidence to the contrary, unless such inference may arise from the fact that they assisted him in leaving. As a matter of admitted fact, the father furnished him the money for his railroad fare and expenses, and on the day that he left took him in his automobile to a point near where Ralph and his wife lived and waited there for him to get his belongings from the apartment. The desertion, if the plaintiff's story is true, was cruel and indefensible. Even in the light of the husband's explanation, it was cowardly. [3] But if the determination to abandon his wife was the result of the husband's own volition, and not influenced by any willful or malicious act of the defendants, they cannot be held responsible because they assisted him in carrying out his purpose. They had a perfect legal right to side with their son in this separation, if it was done in belief of his story of the cause of his leaving and in sympathy for him, and not because of malice and ill will toward his wife. The New York court of appeals, in the case of Servis v.Servis, 172 N.Y. 438, [65 N.E. 270], says: "Of the absolute right of a father to furnish money for the support of a son who has for reasons good or bad determined to abandon his wife, there is of course no doubt; a right that he may exercise without being subjected to respond in damages, provided its exercise be not part of a general scheme having for its object the alienation of the husband's affections from the wife and her abandonment by him."

The plaintiff's cause of action is for alienation of her husband's affections and inducing the desertion. If the state of mind which induced this desertion was caused by the willful and malicious influence of the parents, they would be liable, irrespective of whether or not they assisted him in his plans to go away. If his loss of affection for and determination to leave his wife arose from their own domestic troubles, whether over the wife's implacable purpose to break up his relations with his father and mother or otherwise, and without malicious interference of the defendants, they are not legally responsible, no matter what assistance they gave him in carrying out his purpose; and no presumption of a bad motive arises from the mere fact that they gave him such assistance. (Reed v. Reed, 6 Ind. App. 317, [51 Am. St. Rep. 310, 33 N.E. 638]; Trumbull v. Trumbull, 71 Neb. 186, [8 Ann. Cas. 812, 98 N.W. 683]; Cripe v. Cripe,supra.) [4] The marriage of a child does not terminate the right of the parents to interest themselves in his or her happiness and welfare; and they do not stand on the footing of a stranger to the domestic relations when such a charge as is here involved is brought against them. So long as they, in good faith, act for what they believe is their child's welfare, no matter how mistakenly, and are not moved by malice or ill will toward the partner to the marriage, there is no liability, even where they use their influence to bring about a separation.

[5] The relations of a parent, particularly of a mother to her son, are scarcely less sacred that the relationship between husband and wife, and are usually more unselfish. The home of the parents is the natural sanctuary of the children in cases of marital infelicity. It is not the policy of the law to leave this door open only at the risk of involving the parents in litigation for alienation of affection. No presumption arises of malicious interference because the parents take sides with their child, unless it affirmatively appears that it is done in bad faith and from ill will toward the other party. A mother has a right to fight to retain the affection and society of her boy so long as she does not try to interfere with his duty to his own domestic relations; and any wife who, without serious cause, interposes a barrier to her husband's affectionate regard for his mother, deserves to lose his love. We find no evidence in this case of anything but a spirit of friendliness and a desire to conciliate the regard and affection of this plaintiff on the part of defendants, for the first two years of her marriage with their son, a spirit which, if interrupted, was not broken by the one or two unfortunate quarrels, incidents for which the plaintiff's suspicion and unfriendly attitude toward her parents-in-law were largely responsible. And after the quarrel in March, 1915, some three or four months before the desertion of plaintiff by her husband, there is no reason to believe there was a day when the defendants would not gladly have welcomed a reconciliation with their daughter-in-law. They made every attempt in that direction that self-respect would permit, and their advances were coldly repulsed. [6] It is not unlikely in moments of resentment they said harsh and unkind things about her; but that fact alone does not justify an inference that they violated the laws of God and society by trying to break up the marriage relation of these young people.

It must be remembered that there is no direct evidence that they did try to influence their son in this regard, but, on the other hand, the son and both defendants explicitly deny that any such influence was ever attempted; and each of them testified that the defendants, when told of his intentions, advised him to remain with his wife. The husband's explanation of the estrangement from his wife is that it resulted from constant quarrels over the wife's insistence that he give up all social relations with his father and mother. There is at least no evidence to rebut the statement of the defendants that they were so informed, and so believed, when they finally consented to aid their son in the separation. [7] It is a cruel and reprehensible circumstance that they permitted this thing to happen without offering any aid or comfort to the deserted wife. But, however unjustifiable this may seem, even in view of the plaintiff's hostility toward them, it was the violation of no legal duty, and in itself raises no inference that they instigated his desertion. It is sought to connect the mother with the preparation of the note left by the husband to inform the plaintiff of his desertion. Ralph Bourne and both defendants deny that she had anything to do with it. The only evidence tending to show that the mother had any part in this note is a single word written on its margin, which the plaintiff testified was in the handwriting of her husband's mother. A comparison of this with other exhibits showing the same word in the admitted handwriting of the mother alone seems to be a sufficient disproof of this testimony. But, in any event, it is an immaterial circumstance. The note was written after the determination of Ralph Bourne to leave his wife had been formed and declared, and at the most would indicate an acquiescence and co-operation in his avowed purpose, without being of the slightest value in showing that the defendants had influenced his determination in the matter, or in discrediting their testimony that they relied on the representations of their son as to the cause of his separation from his wife. The jury may have been justified in disbelieving the testimony of Ralph Bourne as to the cause of his leaving his wife, but there is no legal ground for rejecting the testimony of the defendants that they believed their son's account of the matter. Their testimony in this regard is not impeached, either by direct evidence or by any legitimate inference or presumption from the known relations of the parties, or the circumstances of the case. (Maupin v. Solomon, 41 Cal.App. 323, [183 P. 198].) [8] While the jurors are the sole judges of the weight and sufficiency of the evidence, their province in receiving or rejecting evidence, as they were by the court instructed, is not arbitrary, but is to be exercised with legal discretion and in subordination to the rules of evidence. [9] Two conclusions must be established by plaintiff in this case to support a verdict against the defendants: First, that they knowingly and willfully influenced their son to withdraw his affection and companionship from his wife, the plaintiff; and, second, that this was done in a spirit of malice and ill will toward the plaintiff. The circumstances proved and attempted to be proved, of quarrels with and criticism of the plaintiff, and assistance given to the son after he had announced his plans to abandon his wife, do not prove or even raise an inference of act or effort to alienate his affections from her. It may be conceded that if this primary fact was proved, these unkindly acts and expressions might be sufficient to support a finding of malicious purpose; but in the absence of any evidence of the primary fact, there is no foundation upon which any proof of malice or ill will can rest.

Respondent's counsel argue that the acts of the parents disclose a hostile feeling toward their daughter-in-law, that this feeling evidences a motive prompting them to alienate the son's affections, and that, therefore, the existence of such motive is a circumstance that may justify the inference that the parents did use persuasion and inducement to alienate their son's affection from his young wife. Seeking to draw an analogy between a case such as this and a prosecution for crime, counsel say: "Men are hung for less evidence than this. . . . Jones has a grudge against Smith, and Smith is found murdered; Jones is shown to have had the opportunity to commit the crime; his gun is found in the vicinity of the murder bearing evidence that one shot had been fired; at the trial he attempts to establish an alibi; the jury convicts him and the court upholds the conviction, and no reasonable man questions the fact that the evidence is sufficient to establish all the elements of the crime." The analogy is entirely unsubstantial. In the supposititious criminal case instanced by counsel, a crime has been committed, the corpus delicti is established, and the question is, Who did it? Among other circumstances tending to point the accusing finger of suspicion toward the defendant is the fact that he had a motive for committing the crime. If the body of the dead man had been found under circumstances that pointed to suicide, the mere fact that the accused had a motive for the commission of murder would not show that the crime of murder had been committed, or established the corpus delicti. [10] So here, the fact that the parents may have had a grudge against their daughter-in-law, or a motive for alienating their son's affections, would not suffice to prove that his love for his wife waned and flickered out as the result of his parents' conscious and willful influence or persuasion, and not as the result of some innate cause born within his breast unassisted by any acts on the part of his parents, done for the purpose and with the intent of bringing about that condition of heart within him.

[11] Conceding its full probative force to all the evidence in behalf of the plaintiff, and disregarding, as we must, the denials and contrary testimony of the defendants, the evidence is insufficient for this purpose. The evidence here would not justify a verdict against strangers, much less as against parents. [12] The law places the parents of a married child on a much more favorable basis than that of a stranger to the family relations, in actions for alienation of affection. All presumptions in such cases must be that the parents will act only for the best interests of the child. (Trumbull v.Trumbull, supra; Oakman v. Belden, 94 Me. 280, [80 Am. St. Rep. 396, 47 A. 553]; Multer v. Knibbs, 193 Mass. 556, [9 Ann. Cas. 958, 9 L.R.A. (N.S.) 322, 79 N.E. 762]; Reed v.Reed, supra; Tucker v. Tucker, 74 Miss. 93, [32 L.R.A. 623, 19 So. 955]; Hall v. Hall, 174 Cal. 718, [164 P. 390].) In Hall v. Hall, supra, our supreme court states the rule as follows: "Having in contemplation the natural solicitude of the parent for the child, and the well-nigh universal experience of mankind that parents in their conduct toward their children are actuated by high and disinterested motives involving the sacrifice of their own interests for the welfare of their child, it is not to be lightly inferred that the language or conduct of such a parent toward a child is prompted by evil or malicious motives. Therefore, to establish such willful and malicious alienation, the measure of proof must be extremely high," and "every presumption is that the parent acted for the best interests of the child." There is a striking parallel between the circumstances and relations of the parties as set forth in the opinion in the foregoing case and those of the present case; although the evidence of attempts by the parents of plaintiff's husband, in the case cited, to bring about a separation was much stronger than that against the defendants here. The court, however, held the evidence insufficient to sustain the verdict for plaintiff. There were other elements entering into the decision in the Hall case, and in the end it was the wife who left the husband; but the gist of her action was that her husband's affections had been previously alienated by the influence of her husband's parents. The decision in its entirety remains a convincing authority against the verdict of the jury in this case. The evidence in the case at bar is insufficient to support the conclusion either that any acts or representations of the parents alienated the affection of plaintiff's husband, or that such acts and representations as were shown in evidence were intended to alienate the husband's affections, or were done or made in a spirit of malice toward the plaintiff. It is difficult to escape the conviction that the jury, consciously or unconsciously, was influenced in its verdict by the hearsay declarations.

Appellants further urged as ground for reversal that there is no evidence in this case to justify holding the defendant Harry S. Bourne as a joint tort-feasor with his wife, even if the evidence is sufficient to support a verdict against the latter. We think this point is well taken. As has been pointed out, not one hostile word or act tending to show malice or ill will on the part of the father against his son's wife, or any effort on his part to bring about a separation, appears in the record, excepting the circumstances as testified to by plaintiff's mother; that after the quarrel and removal of the young folks to Glendale, incident to the automobile accident, the father-in-law said that he was sorry his son had not married another girl with whom he had kept company, and that Marie, the plaintiff, was not a good housekeeper. It is true the father-in-law was a party to the quarrel the night of the automobile accident, and is alleged by plaintiff to have caught hold of her hands on that occasion in an attempt to compel her to come into the house. It would appear from his testimony that he was much concerned to get all the parties into the house to terminate a disgraceful scene on the street; but, in any event, this incident was entirely fortuitous and incidental, and it appears from the subsequent actions of all concerned, and particularly of the defendants, that it was fully condoned by subsequent reconciliation and good feeling between the two families. He had no connection whatever with the second quarrel, or with any subsequent events, excepting the assistance he gave his son at the time of his leaving his wife; and, as already pointed out, this was given under protest, and in the light of his son's representations that he had made up his mind to leave, and if his father did not help him he would get away as best he could. There is nothing to indicate that the father was in any way a party to, or countenanced or encouraged, the temperamental and at times apparently hysterical outbreaks of his wife.

[13] We are of the opinion, too, that there was error in the admission by the court, over defendants' objection, of plaintiff's testimony of declarations of her husband as to his father being worth seventy-five thousand dollars. This was clearly hearsay, had no legitimate value in proving the state of the husband's feelings, was contrary to the testimony of the defendant parent — who swore that he was not worth over fifteen or twenty thousand dollars — and quite probably influenced the comparatively large amount of damages found by the jury.

Judgment reversed.

Finlayson, P. J., concurred.