Wallace v. Wallace , 85 Mont. 492 ( 1929 )

I dissent. I am unable to agree in the conclusions reached by the other members of this court as regards the sufficiency of the evidence to sustain the verdict, or upon the admission of certain evidence hereinafter discussed.

I am of the opinion that the statement of the evidence by the court in the main opinion is not sufficiently elaborate to disclose all the circumstances surrounding this tragedy. As far as possible, without repetition, these additional facts appear without dispute:

Plaintiff and defendant first met in Missoula in the spring of 1924; plaintiff and Billy then being engaged. Defendant was a patient at the Sisters' Hospital in Missoula, and she gave the plaintiff, who was a frequent visitor of the defendant, an appropriate graduating present. Defendant then knew of the plaintiff's religion.

The defendant's reference to Ella May as "a dirty Irish Catholic," her appearance before her deceased husband's picture, and stating, "They won't get any of our money, will they, Daddy," and her referring to Ella May that "any kid could arrange flowers as well," all occurred prior to the marriage.

The statements made by the defendant to the plaintiff or her husband and to witnesses Alaska Barrille and Mrs. Kelly to the effect that she did not approve of marriages between Catholics and Protestants, that she intended to leave her money to charity, and would not leave any of her property to Billy or Catholic grandchildren, were all made within a short period after the marriage.

As to the cocktails served, it appears from the plaintiff's witness Alaska Barrille as follows: "Mrs. Wallace tasted it and said it was too strong for girls to drink and she hoped Ella May would get drunk and teach Billy a lesson."

Plaintiff discovered she was pregnant about the 1st of November, and she states that she and Billy had been using safeties until Billy told her that his mother said they should not use safeties, and plaintiff says that Billy's mother bought a syringe and boracic acid, and told Billy how to use them. It appears that plaintiff took turpentine in capsules prepared by Billy and under instruction from Billy as to how to take them, the defendant in this instance having got the bottle of turpentine and set it on Billy's desk; that she later took borax in capsules prepared by the defendant, and, according to the plaintiff, these medicines were taken to produce an abortion, and defendant told her that Billy was much upset over the fact of her pregnancy, and "that we should not have any children, as it would cause trouble," and that plaintiff took the borax to save her home.

From the plaintiff's evidence and from uncontradicted evidence, it is established that, after the marriage, plaintiff and her husband attended many football games, week-end parties, the State Fair, had many guests at their own home, and in general had a good time. Defendant gave plaintiff money at various times and appropriate presents. On January 15 they left for a tour of Europe, sailing from New York January 26 and returning about April 28. Defendant opposed this trip because they could not afford it and because the plaintiff was pregnant. She helped plaintiff prepare for the trip, and during their absence bought some new furniture and new bedding for their use, and made other new bedding for them. Within a week after their return home from Europe, defendant left for a month's visit in Missouri, returning about May 29. While in New York and during the European tour plaintiff and defendant corresponded, and plaintiff's letters to defendant were written in endearing terms. The first one, from New York, written January 24, 1926, recites: "I was so blue the morning we left and the day before that I just could not talk. I didn't even thank you for all the help you gave me. I do now, though, many times. This will be good bye and love to you from Uncle Sammy's land." Signed, "Ella May." And again, in a letter by plaintiff to defendant, dated March 31, 1926, plaintiff says: "Your letters have been so nice and you have no idea how glad we were to get them." And again: "The food has been very good on the whole, many eggs and more chicken — but oh how good some Mother Wallace fried chicken would taste. Billy always adds, ``The biscuits, too,' when we talk about it." "Now I will send birthday greetings again and much love. March is almost over and I hope that you are well and before long we will see you." Signed, "Ella May." And again, April 12, 1926, from Paris, plaintiff sent defendant a postcard, in which she sends her love and says: "We will soon be home." On board the Cunard steamship, February 12, plaintiff wrote defendant, closing with the following: "Much love and I hope you are well and that everything is fine. Love." Signed, "Ella May." All of the letters are addressed "Dear Mother Wallace."

Defendant made the arrangements with Dr. Thornton for plaintiff's confinement in the hospital, and arranged for the plaintiff to have the best of service. About the middle of June plaintiff's father visited the Wallace ranch, and the plaintiff at that time wanted to go to her mother in California for her confinement, but the defendant and Billy objected to this, for the reason that it would be too risky in her then condition, and defendant said plaintiff ought to be with her husband on the birth of the first child. During the month of June, the plaintiff and the defendant worked together in making baby clothes and other things in preparation for the expected child. Billy was present at the birth of the baby, and went to see the plaintiff twice on August 7, and then no more. During the confinement and plaintiff's stay in the hospital, plaintiff's mother was in attendance. On August 7 Billy asked plaintiff when she would be ready to come home, and plaintiff replied that she would not return to the ranch under the existing conditions. She made up her mind not to return to the ranch about August 1. Defendant visited plaintiff at the hospital about three days after the birth of the child, and sent flowers to the plaintiff from the ranch on several occasions, but no more after plaintiff's mother requested her not to send any more flowers. Plaintiff did not return to the ranch until September 6. She arrived at the ranch in company with a nurse, Miss McNally, and they were met at the train by Lulu Hoephner, who drove them to the ranch. No special preparations had been made for her at the ranch, and no fire was in plaintiff's room, and the room was chilly. Plaintiff's husband did not greet her, other than to assist her in taking her luggage from the automobile, and the same evening he left for Helena, and remained away until September 28, on which date he filed an action for divorce. This action was pending when the present action was commenced.

The defendant, while her son was in Helena, entreated her friends and friends of both her son and plaintiff to intercede and prevent the divorce action. Only one of these, Attorney Scharnikow, interviewed Billy, and Billy declined to consider reconciliation and said, in effect, that he was going to bring suit against his wife, and that he would do it, no matter who objected, whether his mother, Scharnikow, or anyone else.

Plaintiff remained at the Wallace ranch until the latter part of September, 1926. Shortly before leaving, her father visited and talked with the defendant, who in substance said that "Ella May was a Catholic and she did not believe they would ever make up; that if he could arrange to send Ella May to California to her mother this thing might blow over, as I want Billy back and he never will come back to this ranch as long as Ella May is here." Acting on this suggestion, plaintiff's father went to Helena to see Billy, and did see him, but Billy refused to discuss the matter with him, and walked away from him. The latter part of September plaintiff left the Wallace ranch with her father.

The will of the defendant, Martha Wallace was admitted in evidence bearing date August 18, 1924, wherein her son, William Hibbs Wallace, with the exception of two money bequests of $2,500 each, was given her entire estate, and, in the event of his death prior to her decease, such estate should go to the lawful issue of her son, William Hibbs Wallace, which will was in effect at the date of this trial.

Alaska Barrille gave the only testimony of shrugs and grimaces made by the defendant, and this occurred on only one occasion, and the witness was the only person present.

The plaintiff's witness Miss McNally states that Billy told her the trouble between Ella May and himself was largely money matters, and that his wife thought he was made of money.

Billy testified that he did not love the plaintiff at the time she went to the hospital, nor when she returned to the ranch with the baby, and that he asked her to come home on account of the baby; that he did love the baby. He also testified that his mother went to him in Helena and tried to get him to come back to the ranch and drop the divorce action, but that he would not do it.

The following testimony was admitted over objection of the defendant, and error was assigned: "Q. What further did he say to you as to her being a friend of yours? A. He told me that his mother and I could never be friends; that now that I had married Billy there was no use of our trying to be friends; that she would get me if she could.

"Q. What did he say with reference to his mother's statement to him as to what you should do? A. Billy told me that I should not argue with his mother and that he would appreciate it if I didn't." These are assignments of error 7 and 8, and in the order above given.

It is also assigned as error that the court refused to give defendant's offered instruction D-10 and gave instruction No. 13. Offered instruction D-10 is as follows: "You are instructed that there has been admitted in evidence testimony by the plaintiff that William Hibbs Wallace made plaintiff certain statements concerning certain alleged acts and utterances of the defendant. This evidence was not admissible for any purpose and should not be considered."

Instruction No. 13 is as follows: "In this case, certain testimony of plaintiff concerning recitals of William Hibbs Wallace, the husband of the plaintiff, concerning the acts and utterances of the defendant, has been admitted in evidence. The court instructs you with reference to these acts and utterances, as recited and testified to by the plaintiff, as having been told to her by her husband, William Hibbs Wallace, that each and all of these were admitted, not as evidence of the truth of any such statements or alleged declarations, but they were admitted solely and only to prove and establish, if they do so tend to prove or establish, the mental attitude or state of mind of the said William Hibbs Wallace; such alleged declarations are not to be considered by you as even tending to prove or establish the truth of any of such statements or declarations themselves, or in anywise tending to establish or prove the guilt of the defendant, so far as such statements and declarations go."

By the weight of authority such evidence is inadmissible for any purpose. (McGowan v. Armour, 248 Fed. 676, 160 C.C.A. 576; Cochrane v. Cochrane, 196 N.Y. 86, 17 Ann. Cas. 782, 24 L.R.A. (n.s.) 160, 89 N.E. 470; Huling v. Huling, 32 Ill. App. 519; McVey v. Blair, 7 Ind. 590; Preston v. Bowers,13 Ohio St. 1, 82 Am. Dec. 430; Brison v. McKellop,41 Okla. 374, 138 P. 154; Jameson v. Tully, 178 Cal. 380,173 P. 577.)

One of the leading cases on this question, and a case frequently cited by the courts, is McGowan v. Armour, supra, and relied upon by the appellant in this case. There the court said: "Mr. Armour's statements, indicative of his own feelings, could be testified to by any person who heard him make such statements. It is also true that any statements made by defendant indicative of her feelings towards Mr. Armour might be given in evidence by any person who heard her make such statements. The vice of the evidence which was received in the present case is that plaintiff, who was testifying, did not hear the defendant make the statements. The statements were made to her husband. Her husband, however, was not a witness. He never told the court under oath, and subject to cross-examination, what the defendant's statements were to him. On the contrary, defendant's statements were all run through one more conduit, namely, the plaintiff. She was permitted to tell what her husband told her that defendant had said to him. It is entirely plain that this went beyond any permissible rule. Anybody who heard Mrs. McGowan make statements expressive of her affections for Mr. Armour could testify as a witness before the court to those statements. That, however, is as far as the hearsay rule has been relaxed in such cases. The vice of the evidence received by the trial court is that it passed through one more messenger, and that messenger was passion * * * to distort the hearsay statements which she claimed to report. In the quest for Mr. Armour's feelings, he was converted into a general agent of the defendant to make the most damaging admissions on her behalf. To permit that was to lose sight of substantial justice in the pursuit of a dangerous and purely incidental matter. To say that the vice of this practice can be cured by admonitions to the jury as to the restricted purpose for which the evidence is received is to indulge a purely academic view of the lay mind. The verdict that was rendered in the present case is the best proof of the fallacy of such confidence."

In admitting testimony of this kind, the utterance must be the spontaneous and natural manifestation of the then existing emotion which inspired and produced it. As it was said in the case of Pugsley v. Smyth, 98 Or. 463, 194 P. 691: "It may be that in a given conversation between the husband and his deserted wife, she may make many declarations; and while some of these declarations may be natural expressions of emotions, yet the others may be pure narratives of acts done and words spoken, and hence not admissible."

In the present case the declarations made by the husband were not accompanied by any emotional act or utterance of the husband to occasion the declarations or for which the declarations offered any explanation, and the declarations were wholly narrative.

Moreover, the evidence set forth in specification of error No. 7 is a conclusion of the witness and an assertion by the witness of a threat made by the defendant to "get the plaintiff, if she could," whereas the record is wholly silent as to any such fact. This assertion imports direct malice of the defendant toward the plaintiff. It could not bind the defendant, and its admission was necessarily highly prejudicial to the defendant. The evidence objected to in assignment of error No. 8 is the instruction of the husband to plaintiff, of which the defendant knew nothing, could in nowise be binding upon her, and its only effect would be prejudicial to the defendant's rights. I am of the opinion that the admission of this evidence was reversible error, and that the instruction No. 13 should have been refused and the defendant's offered instruction No. D-10 given.

By specification of error No. 16, defendant asserts the court erred in permitting the plaintiff to testify that the reason why she asked certain persons who were at the Wallace home to look after the baby was because she was afraid to leave the baby alone with the defendant.

It was also, in my opinion, error for the court to permit the introduction of this testimony. Such evidence was merely a conclusion of the plaintiff, inferring that the defendant was so prejudiced against the baby that she would injure it, and was calculated to influence, inflame and prejudice the jury against the defendant.

It is also assigned as error that the court admitted evidence showing defendant's participation in the attempted abortion. Opposite conclusions have been reached by the courts on admission of this class of testimony. In the case of Biggs v. Biggs,78 Colo. 310, 241 P. 539, and in the case of Raleigh v.Raleigh (Mo. Sup.), 5 S.W.2d 689, all such testimony is held admissible on the theory that the birth of a child would have a tendency to keep the husband and wife together; on the other hand, the supreme court of Oregon, in the case of Schneider v.Tapfer, 92 Or. 520, 180 P. 107, concludes that such testimony did not in any way tend to show the state of mind of the plaintiff in leaving the husband. The evidence in that case was hearsay, but the court, on its relevancy, said: "It was simply evidence which tended to debase and degrade the defendant, by causing the jury to believe he had approved of his daughter's criminal abortion. Evidence could hardly have been offered which was more irrelevant to the issues involved in this case, and certainly none could have been offered which was more likely to inflame and prejudice the minds of the jury against the defendant. It was utterly incompetent to prove that the defendant had approved the abortion by such hearsay testimony; and even if he did approve it, it was no such an action as had any natural tendency to alienate the wife's affections."

The theory of the plaintiff in the case at bar in offering this testimony and the reason assigned by the plaintiff for the attempted abortion was for the purpose of keeping peace in the family and avoiding any possible friction between her and her husband that might arise over raising their children Catholics.

It further appears that neither the plaintiff nor her husband were desirous of having children, and that they were using contraceptive methods without any suggestion from the defendant prior to the conception. The plaintiff, her husband, and the defendant co-operated in the attempted abortion, and the attempt was unsuccessful. The evidence, therefore, does not show, or tend to show, that it was for the purpose of alienating Billy's affections, and hence the reason for admitting such evidence, as given in the case of Biggs v. Biggs, and Raleigh v.Raleigh, supra, is absent. The fact that the court permitted this evidence to be introduced showing this defendant guilty of a crime punishable under the laws of this state which, as I view it, could not support the plaintiff's case, could only prejudice defendant's standing before the jury.

In my opinion, the evidence is wholly insufficient to sustain the verdict. The law is well settled that, in cases brought against parents of the spouse whose affections have been alienated, the burden is heavier and the degree of proof required is stronger than in ordinary actions, or in actions of this character against a stranger. It is incumbent upon the plaintiff to prove by a preponderance of competent evidence (a) that the defendant was the controlling cause of such alienation, (b) that the acts of the defendant were intended by her to cause such alienation, and (c) that the defendant acted from improper motives and with malice toward the plaintiff. (Hutcheson v.Peck, 5 Johns. (N.Y.) 196; Meek v. Meek, 118 Kan. 106,233 P. 1032; Cooper v. Cooper, 102 Kan. 378, 171 P. 5;Kadow v. Kadow, 195 Wis. 650, 219 N.W. 275; Moir v. Moir,181 Iowa, 1005, 165 N.W. 225; Bourne v. Bourne, 43 Cal. App. 516,185 P. 489; Tucker v. Tucker, 74 Miss. 93, 32 L.R.A. 623, 19 So. 955; Brison v. McKellop, supra.)

The earliest case involving this question is Hutcheson v.Peck, supra, wherein Chief Justice Kent of the supreme court of New York said: "If the defendant did not stand in the relation of father to the" plaintiff "I should not, perhaps, be inclined to interfere with the verdict. But that relationship gives the case a new and peculiar interest; this is the first action of the kind I have met with, brought against the father. A father's house is always open to his children; and, whether they be married or unmarried, it is still to them a refuge from evil, and a consolation in distress. Natural affection establishes and consecrates this asylum. The father is under even a legal obligation to maintain his children and grandchildren, if he be competent, and they unable to maintain themselves; and according to Lord Coke, it is ``Nature's profession to assist, maintain and console the child.' I should require, therefore, more proof to sustain the action against the father, than against a stranger. It ought to appear either that he detains the wife against her will, or that he entices her away from her husband, from improper motives. Bad or unworthy motives cannot be presumed. They ought to be positively shown, or necessarily deduced from the facts and circumstances detailed. This principle appears to me to preserve, in due dependence upon each other, and to maintain in harmony, the equally strong and sacred interests of the parent and the husband."

In the case of Rice v. Rice, 104 Mich. 371, 62 N.W. 833, the court approved the following instruction, and held the same to be within the rule of Hutcheson v. Peck, supra: "The court instructed the jury that it was not the duty of the defendant to advise his son not to separate from his wife; that if the husband had made up his mind to leave her if she rejoined the Church, and, finding that she had done so, set about leaving her, and the defendant, while he was so doing, advised him that he thought it was best to do so before they had children, there was no liability; that they must find that her husband separated from her because the defendant alienated his affections; that he had the right to object to his son's marrying a Roman Catholic; that he had the right to advise his son that it would be unwise for him to live with her if she again joined the Church; that any advice he might give his son after the separation would not afford a cause of action."

In the case of Kadow v. Kadow, supra, the court said: "One spouse, who seeks to recover damages of the parents of the other spouse for the alienation of the affections of that other spouse, has the burden of establishing two facts: (1) That the acts and advice of the parents were the controlling cause of the separation and of the loss of affections. (2) That such acts were the result of malice or bad intent on the part of the parents toward the spouse claiming damages. (McLery v. McLery,186 Wis. 137, 142, 202 N.W. 156.)"

It is the general rule that an order denying a new trial upon the ground that the evidence is insufficient to maintain the verdict will not be reversed, where the evidence is conflicting, but this court has also declared that the jurors may not act arbitrarily, and that there must be a real conflict in the evidence, and that the supporting evidence must be substantial.

In the case of Haddox v. Northern Pacific Ry. Co.,43 Mont. 8, 113 P. 1119, our supreme court uses the following language: "Juries may not arbitrarily and capriciously disregard testimony of witnesses, not only unimpeached in any of the usual modes known to the law, but supported by all the circumstances in the case." This case was affirmed and cited in the case of Casey v. Northern P. Ry. Co., 60 Mont. 56,198 P. 141, wherein the court, after quoting from the HaddoxCase, said: "It is the general rule that an order denying a new trial upon the ground that the evidence is insufficient to sustain the verdict will not be reversed where the evidence is conflicting, if there is some evidence to support the verdict; but the rule has its foundation in the assumption that the conflict is real and the supporting evidence is substantial."

And in Olsen v. Montana Ore Purchasing Co., 35 Mont. 400, at page 411, 89 P. 731, 734, the court says: "Jurors are not allowed to return verdicts based upon suspicions, conjectures, or probabilities, however strong and convincing they may be. There must be some substantive, concrete evidence to justify the judgment of a court." (Shaw v. New Year Gold Mines Co.,31 Mont. 138, 77 P. 515.)

In the cases cited by the respondent to sustain her contention that the evidence is sufficient to sustain the verdict, that ofNelson v. Nelson (C.C.A.), 296 Fed. 369, probably contained the weakest evidence. But in that case there was a direct threat made by the mother-in-law, accompanied by much other evidence, that, unless he did as she said, she would give all her money to his brother, and the mother-in-law directed that the wife must go home, and said, if the son did not send her home, they would disinherit him, and their money would go to another brother.

In the case of Biggs v. Biggs, 78 Colo. 310, 241 P. 539, relied upon by respondent, defendant told his son that, if he did not get rid of that woman, he would cut him off without a cent.

In those cases, and in all of the cases sustaining a verdict against a parent for the alienation of their child's affection, there has been some direct interference upon the part of the parent directed to their separation.

In the case of Hall v. Hall, 174 Cal. 718, 164 P. 390, the defendant suggested to the husband and the wife that they were not mated, and he said he considered it his duty to separate the two people who were not mated. He offered the plaintiff $1,000 to leave her husband, but the court held this evidence was insufficient to sustain the verdict against the parent. Similar conclusions have been reached in the following cases, holding the evidence insufficient to sustain the verdict:Meek v. Meek, supra; Bourne v. Bourne, supra;Birchfield v. Birchfield, 29 N.M. 19, 217 P. 616; Kadow v. Kadow, supra; Ward v. Ward, 102 Okla. 24, 225 P. 964;Spiry v. Spiry, 47 S.D. 500, 199 N.W. 778; Moir v. Moir,181 Iowa, 1005, 165 N.W. 221; Wohlfort v. Wohlfort,125 Kan. 234, 263 P. 1062.

The evidence is far from meeting the requirements of the law in this class of cases. There is no evidence that the defendant at any time suggested to either the plaintiff, her husband, or to anyone else that the plaintiff and her husband should separate or ought to separate. It appears that the plaintiff and her husband quarreled a great deal; that these quarrels existed prior to sailing for Europe; that they were persisted in during the tour of Europe, and became worse after their return from Europe. There is no evidence that the defendant incited or took any part in these quarrels. Certainly the defendant had nothing to do with any of their troubles while they were in Europe, and, indeed, the correspondence indicates a very cordial relation between the plaintiff and the defendant during this period of time, and this is highly significant upon the question of malice on the part of the defendant.

Even if it might be argued that the sentiments and expressions of the defendant, most of which were made shortly after the marriage, were directed to effect the alienation of her son's affections, her efforts were a signal failure. Certainly they had no effect upon the son, so far as the evidence is concerned at the time they left for Europe on January 15, 1926. From January 15, 1926, and until about June 1 of the same year, with the exception of a few days immediately following the married couple's return from Europe, defendant was not even with the plaintiff and her husband, and there is no evidence that this defendant did anything between January 15 and until the plaintiff returned from the hospital in September, 1926, that could be construed as an attempt to alienate her son's affection. True, the defendant and her son were alone together from the time the plaintiff went to the hospital until she returned in September, but the opportunity to alienate his affections is not proof that the defendant did alienate them. (Meek v. Meek, supra.) And from the record in the case it appears that, prior to the time plaintiff returned from the hospital, the relations between the plaintiff and her husband were beyond reconciliation.

It further appears from the plaintiff's witnesses and from uncontradicted testimony of the defendant's witnesses that the defendant in this case treated the plaintiff kindly. After the decision of Billy to commence a divorce action, she did what she could to reconcile the plaintiff and her husband.

Nor does the evidence show that the defendant dominated Billy. On the contrary, Billy seems to have done as he wanted to. This is illustrated by his having bought an automobile, having taken the European trip against defendant's will, and, as the plaintiff says, married without the defendant's consent, and that he defeated whatever efforts his mother made to effect a reconciliation.

It is also noted that the able judge who tried this case in the lower court was denied the privilege of passing upon the motion for a new trial.

I am of the opinion, therefore, that there is no evidence in the case from which the jury could properly find that the defendant acted with malice, that she was the controlling influence affecting the alienation of her son's affections for the plaintiff, or that there is any evidence from which they could find that the acts and utterances of the defendant were directed to effect a separation between the plaintiff and her husband, and in my opinion the judgment ought to be reversed, with directions to dismiss the action.