Fox v. Fuchs ( 1926 )

Mr. Presiding Justice Taylor

delivered the opinion of the court.

Gladys G. Fox and Carlton E. Fox (formerly Carlton E. Fuchs) were married in Chicago, on June 22, 1916, and lived together as husband and wife, with the exception of a short period, from that time until September 27, 1920, when they separated. On April 6, 1921, Gladys G. Fox, as plaintiff, brought this suit against Albert Fuchs, Sr., father of her husband, for damages for alienating her husband’s affections and causing him to desert and abandon her. The issue upon which the case was tried was made by an amended declaration, consisting of four counts, and a plea of the general issue.

The declaration alleges, in substance, that the defendant, contriving and wilfully intending to injure, prejudice and aggrieve the plaintiff, and to deprive her of the companionship, society, assistance, comfort, protection and happiness derived from her husband, Carlton E. Fox, and to alienate and destroy his affections for her, on September 27, 1920, and on divers other days between that day and the commencement of this suit, wrongfully, maliciously and wickedly induced and persuaded her husband Carlton E. Fox to desert, abandon and live separate and apart from her, and to cease his love and affection for her, and to terminate and end their living together.

There have been four jury trials. The first resulted in a verdict of $5,000 in favor of the plaintiff. That verdict, on motion of both parties for a new trial, was set aside. The second trial resulted in a verdict of the jury finding the defendant not guilty. That verdict was set aside upon a motion for a new trial by the plaintiff. The third trial resulted in a verdict in favor of the plaintiff in the sum of $50,000. That verdict was set. aside, on motion for a new trial made by the defendant. The fourth and last trial resulted in a verdict and judgment for the plaintiff in the sum of $50,000. This appeal is from the latter judgment.

It is the claim of the plaintiff that the evidence shows the following: That she and her husband first became acquainted in 1908; that they became engaged in June, 1915; that the defendant, after he learned of the engagement, wrote to his son threatening to disinherit him if he did not marry some one of German blood; that they were married on June 22, 1916; that sometime in July, 1916, after they were married, the defendant slighted the plaintiff; that sometime shortly after they were married in 1916, the defendant wrote to his son and upbraided him for having married, and for marrying one not German, and stated that he, the son, was now forgotten; that on April 17, 1918, the defendant wrote to his son and said if he had not been a “woman’s slave” he would have gone to his, the defendant’s office, together with his, the son’s, brother, but not with his wife; that in November, 1918, without provocation, “out of a clear sky,” her husband choked her into unconsciousness, and said, “My father was right”; that on May 25, 1918, their first child, Betsy, was born; that on July 17, 1919, the defendant wrote another letter upbraiding his son, and criticizing him for not marrying a German woman; that in August, 1919, the plaintiff’s husband left her and stayed away from home until the following November; that after the first child, Betsy, was born, the defendant said he would never recognize the plaintiff as his daughter-in-law, because she was an American and not a German girl; that he wanted his grandchildren to be brought up as German children and not as Americans; that on April 4, 1920, the second child, named Gladys, was born, and died at the age of two months and twenty-five days; that on February 7, 1920, the defendant wrote to his son urging him to get a divorce from the plaintiff; that on September 25, 1920, when the plaintiff asked her husband if they had to move from the flat they were living in, he replied that she was “going to get out,” and that when she asked him where he was going, he said, “None of your damn business where I am going, but you are going to get out, we are going to have a separation agreement”; that in September, 1920, the plaintiff’s husband told her that his father wanted him to separate, and that if he did he would give bim a position, and that rather than raise their children, he would separate the plaintiff and her husband and put them out of the building, and would disinherit them and give his money to the German orphans; that plaintiff’s husband told her that his father had made it miserable for them ever since they had been married; that on September 26, 1920, the defendant signed a guaranty, undertaking to pay. the plaintiff $125 a month for five years, and $200 a month thereafter as long as the plaintiff remained the wife of his son; that that guaranty was made upon condition that a separation agreement should be entered into between the plaintiff and her husband; that on September 27,1920, a separation agreement was entered into and signed by the plaintiff and her husband; that the plaintiff and her husband then separated; that in December, 1920, her husband told her that his father promised him that he would give him the Annex — a valuable property— as soon as he separated from her; that on March 11, 1921, her husband wrote to the defendant and sent a copy of the letter to her, as follows: “All that I can say now is, that the moment you are prepared to go on with the promise you made in reference to the Annex I am prepared to go on with this. It is your breach of that promise that is resulting in the difficulty you now find yourself in. I must repeat that I would not have made such an insane undertaking had it not been upon the reliance that you would do as you said you would do”; that on March 21,1921, when the plaintiff called up her husband in reference to her allowance, he said, “My father will have to pay it, because he ordered the music, and he will have to pay the fiddler”; that after the final separation, the defendant did turn over a large quantity of property to his son.

The claim of the defendant, as to the facts, is that the alienation of affections of the plaintiff’s husband was not caused by any act or conduct of his, the defendant’s; that the disaffection of the husband and wife was caused by reason of disagreements and quarrels between them; that the defendant gave advice to his son only at his son’s solicitation and after his son had made complaints as to her conduct towards him, her husband; that the advice that he, the defendant, gave his son was given in good faith and was prompted only by his solicitude for the future welfare and happiness of his son. The theory of the defendant as to the law is that serious error was committed in the admission and rejection of evidence.

In the view we take of this case, even though it has been tried so many times, it becomes necessary to reverse the judgment and remand the cause for a new trial, on the ground that substantial error was committed in the admission and rejection of evidence.

Pursuant to the ruling of the trial judge, following Vallone v. Vallone, 228 Ill. App. 543, decided by this court, the wife was allowed to testify in regard to certain conversations which took place between her and her husband in the course of the time they lived together as husband and wife, and, also, to conversations that occurred before marriage, and, also, after their separation. We are now of the opinion that such evidence by her was incompetent. In the Valione case the statute was not referred to, and there was a brief only on one side.

At common law neither the husband nor the wife could be a witness for or against the other in a civil suit. “This is a settled principle of law and equity, and it is founded as well on the interest of the parties being the same, as on public policy.” 2 Kent’s Com. 179; 4 Wigmore on Evidence § 2333; Pugsley v. Smith, 98 Ore. 448. In Waddams v. Humphrey, 22 Ill. 661, it was held “on principles long established” that the deposition of the wife of a defendant, in a suit in equity to set aside a sale, was properly rejected, and in Crose v. Rutledge, 81 Ill. 266 (citing the Waddams case), which was an action on the case by a husband for the seduction of his wife, the court said: “The defense offered the divorced wife of the plaintiff as a witness to prove a fact which must have come to her knowledge, from the very nature of the fact, during the existence of the marital relation. This testimony was properly excluded.”

A husband or wife being ineligible as a witness against the other in civil suits at common law, the question arises as to what extent the common law inhibition has been modified, if at all, by the statute on Evidence and.Depositions. Cahill’s St. ch. 51.

In Rea v. Tucker, 51 Ill. 110, which was an action brought against the defendant for criminal conversation with the plaintiff’s wife, and resulted in a verdict and judgment for the plaintiff, the court said: “The first reason assigned by appellant for a reversal of the judgment is, that the divorced wife of the plaintiff was allowed to testify, against the objections of the defendant. This was clearly error. The point has been often ruled, and the authorities are cited in 1 Greenleaf on Evidence, secs. 337-342; Waddams v. Humphrey, 22 Ill. 661.”

In Mitchinson v. Cross, 58 Ill. 366, a suit for malicious prosecution in which the plaintiff sought to prove by his wife the want of probable cause for the prosecution complained of, for the purpose of showing that the alleged slanderous words upon which it was based, and which imputed to the defendant adulterous intercourse with the witness before her marriage with the plaintiff, were true, the court held that husband and wife were competent witnesses for and against each other only in the cases mentioned in the exceptions to section 5 of the Act of 1867, and that the case in question did not fall within any of those exceptions and that, therefore, the wife as a witness was incompetent. The court said, in referring to the statute: “The first section of this act of 1867 (Gross’ Stat. 274), enacts that: ‘No person shall be disqualified as a witness in any civil action, suit or proceeding, except as hereinafter stated, by reason of his or her interest in the event thereof as a party, or otherwise. ’

“It is apparent that this provision of the statute removes the disqualification of witnesses by reason of interest. But does it touch a disqualification based upon reasons of public policy? We think not. The question has arisen in England and in several of the States, under statutes similar to ours, and it has been uniformly held, that a statute removing incompetency, by reason of interest, did not remove it as to husband and wife.”

In Groom v. Parables, 28 Ill. App. 152 (1888), which was. an action on the case for damages for criminal conversation with the plaintiff’s wife, the court held that the wife of the plaintiff was not competent as a witness, and said: “She was not a competent witness at common law, and she has not been made so by statute.” Citing Crose v. Rutledge, 81 Ill. 266.

In Huling v. Huling, 32 Ill. App. 519, in an action by a wife against the parents of her husband for alienating the affection's of her husband, the court said, in considering testimony given by the plaintiff as to conversations she had with her husband: “It is also objected that the plaintiff was permitted to detail the conversations she had with her husband, as to their purpose of living together and as to the opposition of his parents to the marriage. This was manifestly not competent because it was purely hearsay and was highly calculated to prejudice the rights of the defendants.”

In Mueller v. Knollenberg, 161 Ill. App. 107, an action on the case for damages for the alienation of the affections of the plaintiff’s wife, the court reversed a judgment for the plaintiff on the ground that it was error to allow him to testify that, in an effort at reconciliation, he had begged his wife to return. The court said: “The husband or wife is not permitted to testify to admissions or conversations with the other whether made by him to her or by her to him or by either to third persons except in suits or causes between such husband and wife. Hurd’s Stat. 1906, sec. 5, chap. 51.”

In Scowden, v. Taphorn, 214 Ill. App. 394, which was a suit by a husband for damages for the alienation of his wife’s affections, the trial judge permitted the wife of the plaintiff, over objection, to testify that she had never had improper relations with the defendant. The Appellate Court, holding that the admission of her testimony was error, said: “Plaintiff’s wife is not a competent witness in this behalf either on the part of the defendant or on the part of the plaintiff.” In that case, the court, after citing section 5, chap. 51, said:

“This section of the statute specifically holds that the husband or the wife shall not be rendered competent to testify for or against each other as to any transaction or conversation occurring during the marital life, except in the specific instances mentioned in that section of the statute, under none of which exceptions does plaintiff’s wife come.” Citing Mitchinson v. Cross, 58 Ill. 366; Groom v. Parables, 28 Ill. App. 153.

Section 1 of chapter 51 [Cahill’s St. ch. 51, [[1] provides: “That no person shall be disqualified as a witness in any civil action, suit or proceeding, except as hereinafter stated, by reason of his or her interest in the event thereof,” and section 5 [Cahill’s St. ch. 51, [[5] provides: “No husband or wife shall, by virtue of section 1 of the Act, be rendered competent to testify for or against.each other as to any transaction or conversation occurring during the marriage,” with certain exceptions, and section 5 ends with the words, “provided that nothing in this section contained shall be construed to authorize or permit any such husband or wife to testify to any admissions or conversations of the other, whether made by him to her or by her to him, or by either to third persons, except in suits or causes between such husband and wife.”

It follows that the rule of the common law still applies to any admissions or conversations of the other, and that such admissions and conversations are not authorized or permitted by the statute, “except in suits or causes between such husband and wife.” We shall consider seriatim a number of objections which were made at the trial on behalf of the defendant, and which were overruled.

1. The plaintiff was asked to tell the circumstances concerning her engagement to Fox, who afterwards became her husband. The circumstances referred to occurred about a year prior to their marriage. Counsel for the defendant objected on the ground that it was a statement of facts which occurred prior to marriage. The court overruled the objection, basing his ruling on the Valione case. In answering the question, the witness stated that although her husband wanted her to be present at his graduation exercises, he did not want her to go because his father would be there and he might see her and cause a scene. In our judgment the evidence was incompetent, as at common law a wife could not testify to a conversation with her husband, and the inhibition of the common law was not taken away by section 5 of chapter 51.

2. The witness was asked if her husband, said anything to her about the time they were married with reference to the opposition of her father to the marriage. That was objected to on the ground that it called for the disclosure by the witness of a communication made to her by her husband during the coverture, and was not proper under .the Evidence Act [Cahill’s St. ch. 51], The objection was overruled, and the witness testified that they had “a talk about getting married and about his father. He told me how opposed his father was to me because of my not being of German descent, so he said it would be better for us both if we did not have either my parents there or his parents at the wedding, that we would just be there ourselves, so we had a wedding at the Congregational Church to which I had always gone.” The objection should have been sustained.

3. The witness was asked what her husband said to her on a certain night after they had gone back to their apartment and talked some matters over with the defendant. Counsel for the defendant objected on the ground that the witness was incompetent to testify to the declaration of her husband made to her during marriage, on the ground that the Evidence Act prohibits the wife from testifying to any communication made to her by her husband during coverture, “whether during the existence of marriage relations or otherwise.” The objection was overruled. The witness then testified that her husband said: “If we stay away we shall be happy here. I hate to take a chance of moving down. I can’t tell what might happen down there.” Counsel then moved to strike out the answer of the witness as incompetent. That motion was overruled. The objection should have been sustained, and the motion should have been allowed.

4. The plaintiff further testified that she and her husband moved to an apartment in the Chateau, a building owned by the defendant; that her husband treated her very kindly for a short time, and then on one occasion grabbed her by the throat and started to choke her, and that he said, “My father was right.” Counsel for the defendant moved to strike out the last four words on the ground that the witness was incompetent to testify to a statement made to her by her husband during her marriage. The court ruled that it was admissible, in order to show the state of mind of the husband and the plaintiff, but not as anything that the defendant was supposed to have done. That was error.

5. The plaintiff was asked whether she had any conversation with her husband in regard to their marriage relationship and their living at the Chateau. Counsel for the defendant objected on the ground that it was incompetent under the Evidence Act. The court overruled the objection and said that thereafter the record might show simply the same objection and the same ruling as theretofore, without relating the reasons each time. The witness then testified that she asked her husband if they had to move, and that he said, “Well, you are going to get out,” and that was objected to, and a motion made to strike it out. The motion was overruled. She further testified that she asked him where he was going, and he said, “None of your damn business where I am going, but you are going to get out. We are going to have a separation agreement.” She further testified that the next time he came back he had a guaranty from his father, but on the condition that she and her husband separate. All that evidence was inadmissible.

6. The plaintiff was asked if after the separation in 1920 she had any conversation with her husband in relation to the alienation of his affections, and if she did to state what was said. The witness then stated that she called on her husband in regard- to her allowance, and he told her that he would not pay it, and that his father promised him that he would give him the Annex as soon as he separated from her, and that as soon as he got the Annex he would pay the allowance, and that his father would not have to do it. That conversation was inadmissible.

7. The witness testified, over objection, that she called her husband up on the telephone in regard to the March payment of her allowance; that he said he would not pay it; that his father would have to pay it “because he ordered the music and he would have to pay the fiddler.” That was inadmissible.

8. There was offered in evidence, on behalf of the plaintiff, a letter from her husband which purported to inclose a copy of a letter written by her husband to his father. Counsel for the defendant objected because the letter was a confidential communication between husband and wife ‘ after the cause of action sued upon herein had accrued and was incompetent, irrelevant, immaterial and hearsay; because the wife derived the letter from her husband as a confidential communication; because the letter was too remote from the time of the alleged alienation to be competent and because it was incompetent, irrelevant and hearsay.” The objection was overruled. The letter from the husband to his wife, the plaintiff, was as follows: “I am enclosing carbon of letter to my father of even date. I trust that he will cease his obstreperous non-action and will pay you up as he should. ’ ’

The inclosure, being a copy of the husband’s letter to his father, referred to the fact that the plaintiff had informed him, her husband, that the defendant had refused to go on with his undertaking, that is as to the payment of so much a month to the plaintiff.

That evidence was objectionable. It was entirely ex post facto; the tort, if any, had already been committed, and further, it was in the nature of a declaration by the husband to his wife and so obnoxious. Further, as this court said in Farwell v. Farwell, 234 Ill. App. 638: “We think the letters might be considered in the nature of an admission made by the husband to his wife, and are barred by the statute.” Citing Donnan v. Dorman, 236 Ill. 341; Goelz v. Goelz, 157 Ill. 33; Joiner v. Duncan, 174 Ill. 252.

9. There was offered in evidence parts of a diary which had been kept by the plaintiff’s husband. The contents of the diary were objected to on many grounds, and the objection overruled. The extracts from the diary offered in evidence were dated from January 1, 1916, to August 20, 1916. One of them dated February 25, 1916, contained the following:

“Glad and I had a long serious talk about my father not wishing to have nothing to do with any woman I marry except she be German.”

Another, dated June 18, 1916, contained the following: “Are marrying this way so that my father cannot turn us down. ’ ’

Although the diary was merely the secret, ex parte, voluntary, personal record of the husband, it contained statements made shortly before, and some after, the marriage, and must, we think, be considered as having some probative force, perhaps as corroboration of other evidence, and, therefore, admissible, its weight being left to the jury.

In the course of the examination of the defendant himself, his counsel made a number of offers of proof, which, upon objection for the plaintiff, were rejected as incompetent. Those offers of proof pertained chiefly to statements by the husband, three of them pertaining to matters regarding the state of the husband’s affections for his wife, and the rest pertaining to matters tending to show a desire and conduct on the part of the father that his son should still continue and make an effort to live with his wife. Those offers of evidence give rise to the question: What statements of the alienated spouse may be testified to, if any, by the defendant and by third persons, and what statements made by the defendant to the alienated spouse in the absence of the plaintiff, if any, may be competent?

In Murphy v. Willumsen, 224 Ill. App. 425, after referring to the argument of counsel that the trial judge erroneously refused to allow the defendant to testify to a conversation she had with Murphy, the alienated spouse, out of the presence of the plaintiff, ■ and after stating that it was argued that such evidence would have shown that the defendant was attempting to persuade Murphy to return to his wife, this court held, after citing Bailey v. Bailey, 94 Iowa 598, and Scott v. O’Brien, 129 Ky. 1, to the contrary, that the admission of such testimony would violate the rule against self-serving' declarations and was, therefore, inadmissible. With that we cannot now agree. In the Vallone case, 228 Ill. App. 543, we said:

“We are of the opinion, however, after examination of many cases and considering the necessity of proof of the state of the affections of the plaintiff’s spouse, that evidence of statements on that subject made by him are competent.”

We are in accord with that, but only if such evidence is offered by the testimony of the defendant, or of third persons testifying for either party.

In Bassett v. Bassett, 20 Ill. App. 543, which was an action on the case by a wife against her father-in-law, charging him with wrongfully and maliciously enticing her husband to separate himself from her, the court held that evidence by the defendant that his son was married to the plaintiff while intoxicated, and never had had any affection for the plaintiff before or after their marriage, was admissible in mitigation of damages, and also to prove the theory of the defendant that the husband voluntarily left the plaintiff. The court in that case said:

“The plaintiff claims that by the act of defendant she was deprived of the love and affection of her husband, for which she claims damages. Marriage, of itself, cannot be considered as conclusive proof of that mutual regard and love which should be entertained by husband and wife, and where one of them seeks to recover damages for the loss of love and affection, we know of no case that goes so far as to deprive the defendant of the right of showing the real feelings of the other to the plaintiff. So it has been held in cases brought by the husband for criminal conversation, that evidence as to the terms upon which the plaintiff and his wife lived together was competent in mitigation of damages * * *. What is competent for her to show in aggravation of damages, the contrary thereof is equally competent for the defendant to show in mitigation.” The court also said in that case that “the proposed evidence was competent to be considered upon the question made that the husband voluntarily abandoned the plaintiff without the advice of the defendant.”

In Dunn v. Dunn, 241 Ill. App. 11, which was a suit by a wife against her father-in-law for the alienation of her husband’s affections, this court held that conversations between the defendant and his son, wherein the son told his father that he had received an anonymous letter regarding his wife which made him suspicious, and requested his father, the defendant, to have the plaintiff, the wife, shadowed by detectives, was competent.

It was also held there that a conversation between the plaintiff and the defendant, testified to by the defendant, in which he told her that it was not proper for her to be associating with a former husband, and that that was the reason her present husband, the defendant’s son, was suspicious of her, and that they should patch the thing up, was competent.

It was further held there that conversations between the defendant and his son in the presence of a third person and in the absence of the plaintiff could be testified to by the third person, and also held that a letter which it was said was received by a witness, a third person, from the plaintiff, was competent; that conversations with the plaintiff by a third person were competent; that conversations between the defendant and the son in the plaintiff’s absence were competent, and that defendant’s expressed belief of what he had heard from a third person was competent.

In the opinion in that case the court said: “The letter and interviews were introduced upon the theory that having come to defendant’s knowledge and being factors which influenced his advice and conduct, they were admissible as original evidence * * * as part of the res gestae.” Citing Jones on Evidence, vol. 2, section 346, p. 817.

The Dunn case does not mention either the Murphy or the Valione case.

The following four paragraphs contain a statement of some of the rules of evidence, which, in our opinion, are applicable in this case:

1. In a suit by a wife for the alienation of her husband’s affections she may prove by third persons declarations made by her husband showing the state of his affections at the time such statements were made, his motive or reason for separating from the plaintiff, and the effect of the defendant’s actions upon him. 3 Wigmore on Evidence (2d Ed.) § 1730; 30 C. J. § 1011, p. 1139.

2. Testimony of the defendant, or other witnesses as to statements of the alienated husband, showing the state of his affections, his motive or reason for separating from the plaintiff, or the effect of the plaintiff’s actions upon him, is admissible. 3 Wigmore on Evidence (2d Ed.) § 1730; 13 R. C. L. ¶ 527, p. 1477; 30 Cyc. ¶ 1011, p. 1139; Cripe v. Cripe, 170 Cal. 91; Pugsley v. Smyth, 98 Ore. 448; Noll v. Carlin, 101 Ore. 203; Luick v. Arends, 21 N. D. 614; Schneider v. Tapfer, 92 Ore. 520; Bailey v. Bailey, 94 Iowa 598; Hardwick v. Hardwick, 130 Iowa 230; Price v. Price, 91 Iowa 693; Smith v. Rice, 178 Iowa 673; Glass v. Bennett, 89 Tenn. 478; Boland v. Stanley, 88 Ark. 562; Perry v. Lovejoy, 49 Mich. 529; Gilchrist v. Bale, 8 Watts (Pa.) 355; Ickes v. Ickes, 237 Pa. 582; Rash v. Pratt, 31 Del. 18, 111 Atl. 225; Rudd v. Rounds, 64 Vt. 432; Willey v. Howell, 159 Ky. 805; McGowan v. Armour, 248 Fed. 676; Bassett v. Bassett, 20 Ill. App. 543 and Scott v. O’Brien, 129 Ky. 1.

3. Evidence of statements made by the alienated husband, shortly prior to the marriage, concerning the attitude of his father towards the marriage, is admissible when testified to by the defendant or by third persons.

4. Declarations of the defendant to the alienated spouse are admissible. Dunn v. Dunn, supra. In 13 B. C. L. § 526, p. 1476, the author says that ordinarily the defendant’s declarations, when self-serving, are not admissible in his or her own favor. Still to show that the defendant did not by any act on her part contribute to the alienation of the affections of the plaintiff’s husband, it has been held that evidence of her statements and declarations to the husband, refusing his advances, are admissible on her behalf. Citing Scott v. O’Brien, supra. In the case cited, it appeared that the trial court had excluded evidence of conversations between the defendant and the plaintiff’s husband in an action brought by the plaintiff for alienation of her husband’s affections. By these conversations the defendant had sought to show that the plaintiff’s husband was the first to seek the defendant and make love to her and that she had endeavored to get him to let her alone and return to his wife, but that he had persisted in his attentions to the defendant, so as to get her money and not because of any affection for her. The trial court excluded the evidence of these conversations, upon the ground that they included self-serving declarations by the defendant and that they were hearsay. On this point the court referred to the case of Bailey v. Bailey, 94 Iowa 598, in which a similar question arose and where that court held the offered testimony admissible, and the Kentucky court then held that the testimony there involved was within the rule laid down in the Bailey case, and admissible as a part of the res gestae. The court then said: “Did the appellant, by her intentional conduct, alienate the affections of appellee’s husband * * *. The real facts in issue can only be determined from the acts and conduct of appellant and appellee’s husband, and from the conversations and communications which passed between them. The only way the jury could properly determine the issue involved was to have all the facts properly before them.” Citing Danforth v. Streeter, 28 Vt. 490; Daywitt v. Daywitt, 63 Ind. App. 444; McConnell v. Hannah, 96 Ind. 105; Porter v. Walts, 108 Ind. 46; Carr v. State, 43 Ark. 99; Rudd v. Rounds, 64 Vt. 432; Price v. Price, 91 Iowa 693; Hardwick v. Hardwick, 130 Iowa 230; McGowan, v. Armour, 248 Fed. 676.

Apparently, in all the hearsay exceptions, and there are many, the principle of necessity, in one form or another, is found. Some cases purport to justify the admission of such evidence on the ground that it is part of the res gestae. That seems to be illogical. What is involved is a rule of evidence, and not what constitutes the res gestae. The latter may be known, but whether certain evidence is competent to show it, is another matter. The principle of necessity, therefore, seems to be the sole justification for the admissibility of such evidence; in other words, human nature and human relations being what they are, the facts undertaken to be proved cannot reasonably be shown in any other way.

In our opinion, as stated above, the declarations of the defendant should be considered as admissible. Not only should the plaintiff be permitted to introduce testimony as to declarations of the defendant tending to support the allegations to the effect that he has been guilty of alienating the affections of the alienated spouse, but the defendant should also be permitted to put in his own declarations tending to show the contrary.

The offers of proof above referred to, and now considered and set forth, seriatim,, are as follows:

The first was an offer to prove by the defendant that the son said to his father, out of the presence of the plaintiff, “I cannot stand living with Gladys any more. Her continual nagging, crying, fault finding and jealousy are driving me nearly crazy.” That should have been admitted as bearing upon the state of his affections.

The second was an offer to show that at the same conversation he, the defendant, said to his son: “You married this woman. You have got to make it go. Don’t come whining to me. Be a man, brace up and rule your family, but if you cannot do it, I cannot, and you have got to stick to your wife”; and other facts of a similar import. That was competent and should have been admitted.

The third was an offer to prove by the defendant that immediately after the death of the second child his son came to him, the defendant, crying, and said: “I am going to leave tonight. She has let Gladys die because she would not call a doctor. I am not going to stay any more. I wanted to have a doctor and she would not, and I won’t stay any more.” That should have been admitted as evidence of the state of his affections.

The fourth was an offer to prove that in answer to the latter statement by his son, he, the defendant, said: “You knew that she was a Christian Scientist when you married her, and you were a Christian Scientist yourself. I don’t believe much in Christian Science, but your wife has a right to her opinion, and that would not justify you in leaving her.” That was competent and should have been admitted.

The fifth was an offer to show that upon receipt of a certain letter the defendant said to his son: “In spite of what I wrote you, now that I think it over, I do not think that you ought to leave your wife, or get a divorce. Your wife has a sister down in Peoria. Why don’t you go down to Peoria and visit your brother-in-law’s family before you do anything further?” That was competent and should have been admitted.

The sixth was an offer by the defendant to prove that thereupon plaintiff and her husband visited the plaintiff’s sister at Peoria; that after their return, the defendant and his son had another conversation, out of the presence of the plaintiff, in which the defendant said, in substance, that if he, his son, had sense enough he would get along. That was competent and should have been admitted.

The seventh was an offer by the defendant to prove that at the time the guaranty was executed by the defendant, his son came to him and said: “This thing has gone so far that I won’t stay another day, but my wife won’t let me go unless you guarantee that I will pay her $125 a month for five years, and $200 a month thereafter, and I have written • it up here in legal form”; that he, the defendant, then said to his son: “Well, if there is no other way I will sign this in order to help you out, but I still say you ought to live with your wife, or get along somehow or other. I am only signing it because I think in a year or two you will be back again together,” and that, thereupon, he, the defendant, signed the paper and gave it back to his son. That was competent and should have been admitted.

The eighth was an offer to prove that shortly after the birth of the first child his son had a conversation with the defendant in which the son said: “My wife is driving me mad with her Christian Science, I don’t know what to do. She won’t let me get a doctor to treat the baby, and I’m at my wit’s end.” That was competent and should have been admitted.

We are not unmindful of the difficulties encountered in the proper trial of such a case. Apparently, it was first decided in 1900 by the Supreme Court of this State in Betser v. Betser, 186 Ill. 537, that a wife might recover for the loss of her husband’s affections against one who has alienated them. Being so recent, the rules of evidence that may be applicable, in this State, have not been so discussed and formulated that it is easy to determine what is competent. Then, too, the issues in such a case are unusual and complicated, involving as they do the state of mind of the alienated spouse, its cause, the influence of the defendant upon him, the purpose of the defendant, and the damages, all of which tend to make the question of proof exceedingly difficult.

As it will be necessary for this case to be retried and as the evidence then will be different, it becomes unnecessary for us to pass upon the contentions that are made concerning certain instructions, and the damages awarded.

For the reasons set forth above, the judgment will be reversed and the cause remanded for a new trial.

Reversed, and remanded.