Hillers v. Taylor

When this case was before us, on a former appeal, from the Circuit Court for Prince George's County, reported in108 Md. 148, a judgment of that Court in favor of the defendant was reversed for error in the rulings of the Court below, on the evidence presented at the trial and the case was remanded for a new trial.

Subsequently, on the 8th day of October, 1908, the case was removed to the Circuit Court for Anne Arundel County for trial, and from a judgment in that Court in favor of the plaintiff the defendant has appealed.

The questions for our consideration on this appeal are presented by two bills of exceptions, one relating to the ruling of the Court upon a motion by the defendant, at the conclusion of the testimony, to strike out certain testimony of the plaintiff, which had been admitted subject to exception, and, second, to the action of the Court in overruling the defendant's special exception to the granting of the plaintiff's second prayer, which submitted the proper rule of law for the guidance of the jury, in assessing the damages if they found a verdict for the plaintiff.

The suit was brought by the plaintiff against the defendant, to recover damages for alienating the affections of the appellee's husband and persuading him to abandon her.

The declaration contains two counts, the first charging the defendant with criminal conversation with the appellant's husband, resulting in the alienation of his affections, and the second charging her with having caused the alienation and abandonment by wrongful and wicked persuasion and the practice of alluring arts upon him, well knowing him to be the husband of the appellee.

The record shows that in the course of the trial the plaintiff offered evidence tending to prove the facts set out in the second count of the declaration, and the defendant offered no testimony, but at the conclusion of the plaintiff's testimony, submitted the following motion: "The defendant moves the Court to strike from the record all the testimony of the plaintiff in this case with reference to conversations with her husband upon the ground that the conversations have not been in any way shown to have been caused or induced by the acts of the defendant."

The testimony here referred to had been admitted subject to exception, and the ruling of the Court, in overruling this motion forms the basis of the first exception.

We think, upon the state of the record now before us, the Court was entirely right in overruling the motion.

The testimony was competent, under the well-defined exception to the rule against hearsay evidence, in suits like the present one to show the state of feelings existing between the husband and the wife, on the second count of the declaration.

In the former appeal, we held, that evidence of statements made to the plaintiff by her husband relating to the wishes of the defendant or of declarations made by the defendant on the facts of that case, was inadmissible. Such evidence is either hearsay or a mere expression of opinion made out of the presence of the defendant. JUDGE SCHMUCKER, in delivering the opinion of the Court, said, "the subject has received careful consideration in sections 1730 and 1768 of Vol. 3 of Wigmore on Evidence, and more recently in section 1730 of the supplement to that work, where the rule is stated to be from an examination of the authorities, that in alienation suits the utterance of the alienated spouse are admissible to show the result on his or her state of mind of the efforts and influence of the defendant which have otherwise been proven. In that respect the defendant's acts and utterances as recited by the spouse are not hearsay and are admitted not as evidence of the truth of the statements, but of the mental state and motives of the party making them without reference to the truth of the Statements themselves."

Volumes 3, section 1648, of Elliott on Evidence, states the rule to be that "declarations or letters tending to show the feeling existing between the plaintiff's consort and the defendant may be shown, but it must first be shown that the defendant was responsible for the affection manifested for him.

In this case they were admissible as offered, to show the state of the husband's mind, and the state of feelings existing between the husband and wife by reason of the efforts and influence of the defendant which had otherwise been proved. Nevins v.Nevins, 68 Kan. 413; McKenzie v. Lautenschlager, 113 Mich. 171;Rose v. Mitchell, 21 R.I. 270; Billings v. Albright, 66 N.Y. App. Div. 243.

The second exception does not appear to have been signed by JUDGE BRASHEARS, who sat in the case, in the Court below, but the signature "Jas. R. Brashears" (Seal), appears in the record at the conclusion of the defendant's fourth prayer. Assuming that the signature there appended was intended to be affixed to the special exception to the plaintiff's second prayer, we have here an exception to the granting of the plaintiff's second prayer upon the ground and because there was no testimony in the case, that the defendant alienated the affections of the plaintiff's husband.

The plaintiff's second prayer stated the measure of damages, in the usual form, and under the facts of this case, no possible injury resulted therefrom. Hillers v. Taylor, 108 Md. 156.

In Dexter v. McDonald, 103 Md. 398, in passing upon a similar prayer, this Court said, "the third prayer as to the measure of the damages while it seems to state a correct rule for assessing damages under the facts of the case, or a rule as favorable to the defendant as it could ask, is open to the criticism of being abstract in form and in not referring sufficiently to the facts to instruct the jury in the application of the rule stated to the facts. It is apparent, however, that no injury resulted from this. There was no conflict of evidence in the evidence going to the damages in the case." The plaintiff's evidence as to those was offered according to the rule stated and the verdict of the jury was evidently based on this evidence.

There was no prayer at the close of the case on the part of the defendant asking the Court to withdraw the case from the consideration of the jury, for the want of legally sufficient evidence, to entitle the plaintiff to recover, and no proof whatever was submitted on the part of the defendant, in the trial of the case.

On the contrary, the defendant notwithstanding the rejection of the plaintiff's first and third prayers, proceeded with the trial of the case and submitted five prayers two of which were conceded, upon propositions of law, based upon the defendants theory of the case, which were granted by the Court. To have rejected the plaintiff's second prayer would have left the jury uninstructed upon the proper rule, as to damages, at this stage of the case. Gill v. Stayler, 93 Md. 474; Sittig v.Birkenstack, 35 Md. 278.

We discover no error in the ruling of the Court upon this exception, for the further reason that it required the Court to hold that there was no evidence whatever that the defendant alienated the affections of the plaintiff's husband, and to have sustained the exception on this ground, would have been error. There was no prejudicial injury done the defendant by the granting of this prayer, and the conceded prayers were the law of the case. Dryden v. Barnes, 101 Md. 346.

The evidence upon the part of the plaintiff tended to prove the issue, and the jury, upon the instructions from the Court, with the conceded prayers, was the proper tribunal to pass upon it, under the situation of the case, as here presented, by the record. There was practically a waiver of the exception to this prayer, by the submission of the case on the conceded prayers and the defendants instructions. Gans Salvage Co. v. Byrnes,102 Md. 230; Com. Realty Co. v. Dorsey, 114 Md. 172.

Finding no reversible error in the rulings of the Court, presented by the two exceptions contained in the record, the judgment will be affirmed.

Judgment affirmed, with costs.