Clendennen v. Bainbridge , 45 S.D. 410 ( 1922 )

POLLEY, J.

Plaintiff recovered judgment against defendant for alienation of the affections of plaintiff’s wife, and defendant appeals.

Appellant claims he is entitled to a new trial because of the admission of incompetent evidence at the trial. The evidence complained of was admitted over the objection that it was incompetent, hearsay, self-serving, and not binding on the appellant. The court ruled that the respondent might testify to any remonstrance or objection he made to his wife going with defendant, and what she said in reply. Under this ruling respondent testified that: “I told her Bairibri'dge [defendant] was a bad man. * * * I told her that I knew something about Bainbridge; that I did not think he was a proper person to associate with.” To which plaintiff’s wife replied: “I know more about that than you do.” She said he had some trouble with a lady that lived on a corner of his place where he lived. She said she thought Bain-bridge was all right. She said a good many things.

Respondent further testified that he told his wife that he did not want Bainbridge coming to his (respondent’s) place. “She said there was a good many things said about Bainbridge, but they were talking about all people. I told her he (Bainbridge) was a man she ought not to associate with at all. I told her a number of times that I was sorry, and I am sorry now to think I did. I told her that I objected to her being at Bainbridge’s. I wanted her to stay at her sister’s. I said a good many things that I cannot remember. I told her right out that he was nothing but a brute, and had told the defendant this to his face.” Respondent further testified that his wife said she thought more of Bainbridge than she did of plaintiff — said this two or three dozen times; that he remonstrated with his wife when he came home and found Mr. Bainbridge there. There was more of a similar nature, but this is enough to show the character of the testimony that was received over appellant’s objection.

[i] This testimony was not hearsay, but was the testimony of the respondent as to what he himself actually said and what he himself heard his wife say, and does not attempt to prove what some third party said or did by what plaintiff’s wife said to him. “Hearsay denotes that kind of evidence which does not derive its value solely from the credit to be given to- the witness himself, 'but rests also, in part, on the veracity and competency of some other person.” 10 R. C. L. p. 958.

This testimony was offered and received for the purpose of showing the state, of mind of plaintiff’s wife and is competent for that purpose. Jones, ev. § 350 (2d Ed.) ; Ash v. Prunier, 105 Fed. 722, 44 C. C. A. 675; Rudd v. Rounds, 64 Vt. 432, 25 Atl. 483; Glass v. Benentt, 89 Tenn. 478, 14 S. W. 1085; Roesner v. Darrah, 65 Kan. 599, 70 Pac. 597; Wigmore, Ev. § 1730; McKenzie v. Lautenschlager et al., 113 Mich. 171, 71 N. W. 489; Horner v. Yance, 93 Wis. 352, 67 N. W. 720; Smith v. Smith, 42 S. D. 205, 173 N. W. 843. Such words, -however, are competent only as to the loss of affection (Rose v. Mitchell, 21 R. I. 270, 43 Atl. 67), and it is the duty of the trial court, when such, evidence is received, to instruct the jury that such evidence can he ■considered only for the purpose of showing the mental state of the party whose affections are claimed to have been alienated, and not for the purpose of showing that the defendant is responsible for such alienation. Rose v. Mitchell, supra.

[2] It is claimed by appellant that the court, in this case, •did not explain to the jury the purpose for which this testimony was received. Whether this exception is well taken or not, we Rave no way of knowing. No pail of the instructions are preserved in the record brought to this court; therefore the instructions are presumed to correctly state the law and to- be responsive to the evidence. Rule 3., Supreme Court Rules (170 N. W. viii.)

[3] One ground on which a reversal is asked is alleged •misconduct of respondent’s counsel. This conduct consists of the ■following questions asked by respondent’s counsel:

“Did it come to your knowledge that people were talking •about your wife and Bainbridge?” “Were these meetings in the store so frequent that it attracted the attention of the people in the store?” “Was there ever anything said in the store about these meetings there, by others?”

The trial court sustained objections to- all these questions. None of these questions were competent for any purpose and they should not have been asked, but there -is nothing to indicate that •counsel was intentionally asking improper questions, or that such questions were asked for the purpose -of prejudicing the jury, and ■we are unable -to see how they could have prejudiced the jury. They were mere isolated questions asked in connection with a great number of others, touching the relations of defendant and plaintiff’s wife.

[4] There was an abundance of evidence to warrant submitting the case to the jury, and there was no error in denying' appellant’s motion to direct a verdict.

The judgment and order appealed from are affirmed.