The authorities unanimously support the position that where an action of this character is brought against a parent of one of the married pair, much stronger proof is required to establish the cause of action than when it is brought against a stranger. It must be shown not only that the husband's affections have been alienated, but that the alienation was brought about by some act or acts of the defendant, and it must further appear that these acts resulted from malice and evil motive. Because of the relationship between a parent and child, the presumption obtains that all statements in the nature of advice, suggestion or counsel given by the parent to the child are made or given in good faith, and the burden is upon the plaintiff to establish malice and the lack of good faith in addition to the other elements above enumerated. (Tiffany on Domestic Relations, 3d ed., p. 116; 30 C.J. 1129; *Page 496 9 L.R.A. (n.s.), p. 322; Hutcheson v. Peck, 5 Johns. (N.Y.) 196; Bourne v. Bourne, 43 Cal. App. 516, 185 P. 489;Wohlfort v. Wohlfort, 125 Kan. 234, 263 P. 1062; Meek v.Meek, 118 Kan. 106, 233 P. 1032; Birchfield v.Birchfield, 29 N.M. 19, 217 P. 616; Kadow v. Kadow,195 Mich. 650, 219 N.W. 275; 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. 225; Allard v. LaPlain,147 Wash. 497, 266 P. 688; Shalit v. Shalit, 126 Me. 291,138 A. 70; Hall v. Hall, 174 Cal. 718, 164 P. 390;Busenbark v. Busenbark, 150 Iowa, 7, 129 N.W. 332; McLery v. McLery, 186 Wis. 137, 202 N.W. 156; Fronk v. Fronk,159 Mo. App. 543, 141 S.W. 692; McRae v. Robinson, 145 Miss. 191,110 So. 504; Gross v. Gross, 70 W. Va. 317, 39 L.R.A. (n.s.) 261, 73 S.E. 961; Sowle v. Sowle, 115 Neb. 795,215 N.W. 122. See, also, Rice v. Rice, 104 Mich. 371,62 N.W. 833, where the question of religion was raised.)
Plaintiff's counsel made much of the testimony that the defendant said that she would disinherit her son because he had married a Catholic. She had the right to disinherit him if she wished to for any reason and she had the right to give her reason for so doing, and to give it to him. (See Hutcheson v. Peck, supra; Cooper v. Cooper, 102 Kan. 378, 171 P. 5;Woodhouse v. Woodhouse, 99 Vt. 91, 130 A. 758.)
The evidence in the case as to the alleged attempt to prevent conception was extremely prejudicial, and we do not think it should have been admitted, but assuming that it was properly admitted, it could not possibly be proper for any purpose other than to show attitude or disposition, which falls far short of making out a case. Certainly it is no evidence that the defendant in fact alienated the affections of the husband. (Schneider v.Tapfer, 92 Or. 520, 180 P. 107.) We are aware that there are two cases in which evidence of this kind was admitted (Biggs v.Biggs, 78 Colo. 310, 241 P. 539; Raleigh v. Raleigh (Mo.), 5 S.W.2d 689), but these cases are clearly distinguishable. *Page 497
Objection was made to considerable evidence introduced by the plaintiff herself as to what her husband told her the defendant had said, most of the alleged statements relating to the defendant's hostility toward the Catholic religion and toward the plaintiff. These statements were all made out of the presence of the defendant and so far as we can observe they were statements purely narrative in character and in no way indicating the mental condition or attitude of the husband, which was the ground upon which the court assumed to admit them. The court limited testimony of this character to the purpose of indicating the mental attitude or state of mind of Billy. We believe that the better rule is that evidence of this character should be entirely excluded as it is purely hearsay and does not fall within any of the well-defined exceptions to that rule. A leading case upon the subject is McGowan v. Armour, 248 Fed. 676, 160 C.C.A. 676; see, also, Cochran v. Cochran, 196 N.Y. 86, 17 Ann. Cas. 782, 24 L.R.A. (n.s.) 160, 89 N.E. 470; Humphrey v. Pope, 1 Cal. App. 374,82 P. 223; Schneider v. Tapfer, 92 Or. 520,180 P. 107; Brison v. McKellop, 41 Okla. 374, 138 P. 154;Gilbreath v. Gilbreath, 42 Colo. 5, 94 P. 23; Phelps v.Bergers, 92 Neb. 851, 139 N.W. 632; Leavell v. Leavell,122 Mo. App. 654, 99 S.W. 460; Jameson v. Tulley, 178 Cal. 380,172 P. 577; Spiry v. Spiry, 47 S.D. 500, 199 N.W. 778;Dalton v. Martin, 102 W. Va. 595, 4 A.L.R., p. 497,136 S.E. 47.
Excessive verdict: See Smith v. Smith, 192 Mich. 566,159 N.W. 349; Peak v. Rhyno, 200 Iowa, 864, 205 N.W. 515;Okrent v. Roffa, 206 Ky. 211, 266 S.W. 1079, which cases involve similar considerations to those involved in this case. When, under the evidence, is malice shown or properly inferable? It is "established whenever it is shown that parents have interfered with their son's or daughter's domestic relations *Page 498 simply to gratify their own dislike or hatred of the other party to the marriage." (Holtz v. Dick, 42 Ohio St. 23, 51 Am. Rep. 791; Brown v. Brown, 124 N.C. 19, 70 Am. St. Rep. 574,32 S.E. 320; Jones v. Monson, 137 Wis. 478, 129 Am. St. Rep. 1082, 119 N.W. 179; Moelleur v. Moelleur, 55 Mont. 30,173 P. 419; Smith v. Smith, 192 Mich. 566, 159 N.W. 349.) Malice may be implied as well as express. (Warren v. Graham,174 Iowa, 162, 156 N.W. 323 (5). See, also, Roberts v. Cohen,104 Or. 177, 206 P. 293; Gee v. Culver, 13 Or. 598,11 P. 302; Boland v. Stanley, 88 Ark. 562, 129 Am. St. Rep. 114, 115 S.W. 163; Westlake v. Westlake, 34 Ohio St. 621, 32 Am.Rep. 597; Williams v. Williams, 20 Colo. 51, 37 P. 614;Nelson v. Nelson, 296 Fed. 369; Bradbury v. Brooks,82 Colo. 133, 257 P. 359.) Where a parent acts without proper investigation, with recklessness and improper motives, malice will be implied. (Brown v. Brown, supra; Clark v. Clark,187 Ind. 25, 118 N.E. 123; Jones v. Jones, 96 Wash. 172,164 P. 757.)
Lack of affection between the spouses is no defense for parental interference — unless it be to bring them together; they may make up of their own accord, etc.; things may change. (DeFord v. Johnson, 152 Mo. App. 209, 133 S.W. 393;Moelleur v. Moelleur, supra.)
The next contention of defendant is that error was committed in permitting plaintiff to testify as to certain conversations she had with her spouse, Billy, outside the presence of the defendant, in which he told her of certain statements and threats that had been made by the defendant relative to the marital relations of the spouses and the religion of the plaintiff. We submit that these were properly admitted, — not as proving the truth of his statements, not even as tending to establish the guilt of the defendant in any particular, — but solely and absolutely to (1) show his feelings and frame of mind toward the plaintiff (2) and his relations to and frame of mind about the defendant. The court so instructed the jury — both orally and in writing. (Hilers v. Taylor, 116 Md. 165, 81 A. 286; White *Page 499 v. White, 140 Wis. 538, 133 Am. St. Rep. 1100, 122 N.W. 1051;Stocker v. Stocker, 112 Neb. 565, 36 A.L.R. 1063, 199 N.W. 849; Williams v. Williams, 20 Colo. 51, 37 P. 614;Hardwick v. Hardwick, 130 Iowa, 230, 233, 106 N.W. 639;Miller v. Miller, 154 Iowa, 344, 134 N.W. 1058; Pugsley v.Smith, 98 Or. 463, 194 P. 691.) In all such cases, the rule adopted is, that the things that shall be submitted to the jury, under proper instruction of the court, are within the sound discretion of the judge. The judge here has exercised that discretion. (Wendell v. Brown, 142 Wash. 391, 253 P. 452.)
Excessive damages: The rule of assessment in this character of action is sui generis. The allowance is limited only by what the jury deems to be just. (Belt v. Belt (Mo.App.),288 S.W. 100; Nelson v. Nelson, 296 Fed. 369; O'Gorman v.Pfeiffer, 145 A.D. 237, 130 N.Y. Supp. 77.)
The courts are of one opinion on the quantum of damages: "A larger verdict is required to punish a man of wealth than a man of moderate means." (Audibert v. Michaud, 119 Me. 295,111 A. 305.) In Hurdle v. Lang, 125 Me. 518, 134 A. 193, verdict for $22,542 upheld; Oskamp v. Oskamp, 20 Ohio App. 349,152 N.E. 208, 210, a verdict of $100,000 was reduced to $75,000; in Regenvetter v. Ball, 131 Wash. 155, 229 P. 321, $20,000; in Williamson v. Osenton, 220 Fed. 653, 136 C.C.A. 261, $35,000; in Bradbury v. Brooks, 82 Colo. 133,257 P. 359, $25,000; in Mulock v. Ulizio, 3 N.J. Misc. Rep. 631, 129 A. 204, $25,000; in Hyatt v. McCoy, 194 N.C. 760,140 S.E. 807, the supreme court upheld a judgment for $20,000 actual and $10,000 punitive damages. The lower court reduced the $10,000 exemplary award to $8,000, and the supreme court remanded the case with directions to correct the error and allow the $10,000; in Renner v. Renner (N.J.), 136 A. 707, a verdict for $15,000 was upheld.
The adjudicated cases show beyond cavil that verdicts have been sustained wherein the evidence was incomparably less and weaker than the case at bar. (McAllister v. McAllister,72 Colo. 28, 209 P. 788; Allcock v. Allcock, 174 Ky. 665, *Page 500 192 S.W. 853; Multer v. Knibbs, 193 Mass. 556, 9 Ann. Cas. 958, 9 L.R.A. (n.s.) 322, 79 N.E. 762; Francis v. Outlaw,127 Md. 315, 96 A. 517; Biggs v. Biggs, 78 Colo. 310,241 P. 539.) The plaintiff herein, Helen Mary Wallace, brought action in February, 1927, against Martha J. Wallace, mother of plaintiff's husband, William Hibbs Wallace, for the alienation of her husband's affection. Issues being joined, the cause was tried before the court and jury. At the close of the taking of all testimony, defendant moved for a directed verdict, which motion was overruled and the jury instructed as to the law of the case. The jury returned a verdict in favor of plaintiff for $20,000, and judgment was duly entered thereon. Defendant moved for a new trial, which motion was denied. Defendant has appealed from the judgment, and herein makes numerous assignments of error, raising the questions herein discussed.
The undisputed evidence discloses the following facts: The plaintiff, referred to throughout the testimony as "Ella May," and hereinafter so called for convenience, met William Hibbs Wallace, known and hereinafter referred to as "Billy," while the two were students at the State University, and there became engaged during the school year of 1923-24. Upon graduation in 1924, plaintiff went to California, where she taught school, and the engagement was broken off in the fall of that year because of religious differences, plaintiff being a Catholic and Billy a Protestant.
Plaintiff returned to Montana in the summer of 1925, and called Billy by 'phone from Butte, and thereafter twice visited the home of defendant and Billy, in Powell county, at the invitation of defendant. On August 5, 1925, the young couple were married in Butte by a Catholic priest, and at that time Billy signed an agreement that any children born to them *Page 501 should be raised in the Catholic faith. At that time a partnership existed between defendant and Billy in conducting ranching operations on a large ranch, left to defendant during her lifetime, and to Billy on her death, by defendant's deceased husband.
The young couple went to the ranch immediately after their marriage, and they and the defendant jointly made the ranch-house their home for more than a year thereafter. From January to the latter part of April following the young couple were absent in Europe.
Plaintiff was confined in a hospital in Missoula in July, 1926, and there gave birth to a child on the 18th of that month; she remained in the hospital until the fifth day of September, when she returned to the ranch with her baby, and with a nurse in attendance. She was met with coldness on the part of Billy and his mother; Billy sent the nurse back to Missoula almost immediately, and left the ranch the same night and did not return. On September 28, 1926, he commenced divorce proceedings, which resulted in a decree in favor of the wife and the award to her of alimony in the sum of $150 per month for her support and the care of a delicate child requiring frequent medical and surgical treatment.
In oral argument we were advised that this was a second trial of this cause, the first having resulted in a verdict in favor of plaintiff for $40,000, which verdict was set aside by the trial court as excessive.
1. It is first contended that the evidence is insufficient to warrant the submission of the case to the jury or to justify the verdict and judgment.
In considering this assignment, we are bound by the following[1-3] well-established rules circumscribing our right to review the evidence: So long as we retain the jury system and our present statutory provisions with regard thereto, courts and litigants must abide by the decision of the jury respecting the weight of the evidence and the credibility of the witnesses; *Page 502 these are matters with which this court, on appeal, has nothing to do. (Chicago Title Trust Co. v. O'Marr, 25 Mont. 242,64 P. 506.) A jury may believe the testimony of one witness and disbelieve that of another, or any number of others, and the determination of the jury in this regard is final; having spoken, this court must assume that the facts are as stated by the witnesses believed by the jury, and claimed by the prevailing party. (Hanson Sheep Co. v. Farmers' etc. State Bank,53 Mont. 324, 163 P. 1151; Watts v. Billings Bench WaterAssn., 78 Mont. 199, 253 P. 260.) The preponderance of the evidence may be established by a single witness as against a greater number of witnesses who testify to the contrary. (McQuay v. McQuay, 81 Mont. 311, 263 P. 683.)
It follows that wherever there is a conflict in the evidence this court may only review the testimony for the purpose of determining whether or not there is any substantial evidence in the record to support the verdict of the jury, and must accept the evidence there found as true, unless that evidence is so inherently impossible or improbable as not to be entitled to belief; and, where a verdict is based upon substantial evidence which, from any point of view, could have been accepted by the jury as credible, it is binding upon this court, although it may appear inherently weak. (Williams v. Thomas, 58 Mont. 576,194 P. 500.) Where the evidence is conflicting, but substantial evidence appears in the record to support the judgment, the judgment will not be disturbed on appeal, and this is especially true when the court, as here, has passed upon the sufficiency of the evidence on motion for a directed verdict and motion for a new trial and upheld its sufficiency. (Bank of Commerce v.United States Fidelity Guaranty Co., 58 Mont. 236,194 P. 158.)
Considering, then, all of the evidence presented to the jury[4] on behalf of the plaintiff as the facts on which the jury rendered its verdict, without detailing it at length, we have the picture of a strong-minded, keen-witted mother, wholly *Page 503 wrapped up in her only child, fearful of being separated from him, and jealous of anyone seeming to come between them; as a young lady, previously engaged to Billy, said to defendant, "You are afraid someone will get your damned beautiful baby."
There is nothing in the record to show that defendant was in any way concerned in the breaking off of the first engagement of the young people, but the glee with which Billy received knowledge that Ella May was back in the state and willing to see him, and the haste with which he became re-engaged and married, indicate that he was not particularly prejudiced against her religion; the record clearly shows that defendant was strongly opposed to a union with a Catholic. True, defendant twice, within a short period of time, invited plaintiff to the ranch before the marriage, but it is to be noted that on the second occasion she absented herself so that plaintiff, feeling slighted and placed in an embarrassing position, refused to stay out her proposed visit, and within a few days after the marriage the defendant expressed the hope that Ella May would become drunk on cocktails served in her house "and teach Billy a lesson." The young couple was married without her consent, and, being informed by telephone that the ceremony was pending, and asked if they should come home first, she replied "No," and refused to attend. On leaving the 'phone, defendant executed a dance, and remarked that she could now leave the ranch. Asked as to the defendant showing pleasure at the news of the marriage, the witness telling of the matter replied, "Rather than acting delighted and gratified at the time she danced, Mrs. Wallace acted rather hysterical, but so far as I could judge from her appearance she was well pleased at the time; and if she became displeased at any time it was after she first heard of their marriage." This witness further testified that "before they were married she had said she would not live on the ranch with them." Almost immediately she stood before the picture of her deceased husband, *Page 504 and, with tears in her eyes, cried, "They won't get any of our money, will they, Daddy?"
As the time for the arrival of the couple drew near, she then required the maid to coat her face with white powder and paint black circles under her eyes and to tell Billy when he returned that she had eaten nothing and cried all day. She referred to Ella May, in the presence of Billy and before the marriage, "as a dirty Irish Catholic," and made slighting remarks concerning her, indulging in shrugs, gestures, grimaces. On the arrival of the young couple, she told them that the marriage could not be successful owing to the difference in religion.
Although Billy was a full partner in the operation of the ranch, and consequently had equal rights with his mother in the house, the couple was accorded little privacy, even in their bedchamber. This partnership was ended three days after the marriage by the defendant, without giving Billy any voice in the matter, on the ground of his refusal to rise at 6:30 on Sunday morning; he was given $4,000 out of his investment of $18,000, and was thereafter told that he could work for his board and clothes. Defendant thereafter acquired property belonging to Billy at the time of the marriage, valued at many thousands of dollars, which, according to her testimony, Billy "gave" to her.
Within a few days after the marriage, she told the young husband that she was going to change her will and leave all her property to charity; that Catholic grandchildren should have none of her money; that she had given her whole life to him, and he should stay with her as long as she lived; that his marriage would be but temporary, and that he should choose between her and Ella May, or had chosen between the two; that he knew that she disapproved of Ella May, not on her own account, but on account of her religion. Billy cried; she cried. She told the plaintiff that Billy had married without her consent and she was not going to leave any of her money to him, that he had no business getting married while she lived, and that the marriage would not be *Page 505 a success, and she told plaintiff, in the presence of Billy, that a party named had told her that Billy must have been drunk when he married her.
Much of the testimony was given by the hired girl, who admitted that she was discharged five days after the marriage for drunkenness; this witness was asked on cross-examination whether she knew of anything defendant did to influence Billy against plaintiff; she pertinently remarked, "The constant dripping of water will wear away a large stone," and answered, "I am positive she did influence him because of little insinuations she was always making against the Catholics."
Within a week after the wedding defendant made arrangements with a friend to go to a picture show, but, when the friend presumed to congratulate her on the marriage, she became so upset that the show had to be abandoned; she told her friend that it was not a subject for congratulation; that she had consulted a lawyer, but had been advised to keep still about her dislike for her daughter-in-law's religion. This witness expressed the opinion that "things right at that time looked like it would be very hard for everybody concerned." Defendant told the witness that she would leave no money to Catholic grandchildren.
Plaintiff early became pregnant, and, when this was made known to defendant, she told plaintiff, that, if she went through with it and had a child, it meant the breaking up of the union, and advised Billy, and through him the plaintiff, as to methods to be used to cause an abortion; plaintiff complied upon the theory that, if she could get rid of the child, she could retain her home and husband, but without success.
Defendant objected to the trip to Europe, and Ella May was willing to forego it, but Billy insisted, saying he would go alone if she did not go with him; they went, and during their travels plaintiff acquired a rosary from the Holy Land, and Billy bought her a Spanish shawl and fine linens. While they were together and absent from the defendant, Billy promised plaintiff that she should go to her mother in California for *Page 506 her confinement; after their return, this plan was vetoed by Billy and his mother on the ground that she might be confined on the train, although this was some weeks before her confinement. As the time for plaintiff's confinement approached, defendant went with her to a hospital and made arrangements for her; this was about the 1st of July. Thereafter plaintiff remained in Missoula at a hotel, while defendant returned to the ranch with Billy. Relations between the husband and wife, and the wife and mother-in-law, seemed then to be all that could be expected, but by the time the baby was born on July 18, 1926, Billy had lost his affection for his wife; he was present at the time the baby was born, but did not return to the hospital thereafter until August 7, and he then came only at the urgency of plaintiff, although the 5th was their wedding anniversary. The baby had a malformed ear, and Billy seemed to lose interest in the child as soon as he saw it. Plaintiff told him she could not return to the ranch to raise the child under the domination of the defendant, at which he left the hospital, telling her that he would return to talk it over in the afternoon, but did not return. His excuse for not visiting her was that he was too busy, although he lived but a two-hour drive away, and had a car, and was not too busy to take a trip through the Yellowstone Park with his mother and friends.
Finally, in September, Billy wrote plaintiff requesting her to return to the ranch, sent her money for the trip, and directed the doctor to send her and the baby home with a nurse; he promised to meet her on the arrival of the train. She returned, but was met at the depot by a stranger and taken to the ranch, where she found Billy and a lawyer friend sitting on the porch; neither he nor the defendant greeted her or the baby; the house was so cold that the nurse would not permit plaintiff to take off her coat or to unwrap the baby, and, in her weakened condition and in a highly nervous state plaintiff was compelled to go to the yard for wood and build her own fire. After consultation between Billy, the lawyer, and the defendant, Billy forthwith returned the nurse to Missoula, although she had come with five changes of raiment, prepared to stay until the plaintiff should be able to care for her child. *Page 507 Plaintiff had mailed bottles and food for the baby from Missoula; these had been returned to Missoula before her arrival, and she testified that, knowing defendant's handwriting, to the best of her knowledge and belief the return address was in that handwriting. That night Billy and the lawyer departed for Helena, and never thereafter returned to the ranch while Ella May was there, and within the month he commenced his divorce proceeding in Jefferson county, a jurisdiction foreign to the territory of their residence, and in which both were unknown, and during this period defendant talked over the 'phone with Billy on several occasions after he left the ranch and before the filing of the action for divorce, and therein assured him that everything was all right on the ranch and for him not to come back. However, defendant left the ranch for a few days during this period, leaving Ella May on the ranch, but it was then found that the telephone had been disconnected, so that plaintiff could neither communicate with Billy nor seek relief elsewhere, and the circumstances were such that the jury might well believe that the defendant herself had disconnected the 'phone for that purpose.
Plaintiff found that her trunk had been opened, her fine linens used and left in the laundry bag, dirty; her Spanish shawl had disappeared, and her cherished rosary given to the hired girl.
Defendant told plaintiff, "You know I never liked the Catholic faith and have never wanted Catholic grandchildren and now that the baby is defective you can't expect Billy or I to have anything to do with it." One Lindgren testified that he met defendant on her trip from the ranch in September, and that she told him that she was having family troubles over the son's marriage to a Catholic, that she was not going to leave her property to Catholic grandchildren, and that she mentioned the child as "deformed."
Plaintiff's father called at the ranch in September, after Billy had gone to Helena, and asked defendant what the trouble was. Her reply was that "Ella May is a Catholic and I don't believe they will ever make up"; she suggested that, if *Page 508 the father would send Ella May to California, it might "blow over," but gave as her reason for the suggestion that she wanted Billy back on the ranch, and he would never come back while Ella May was there.
It is true that there is no direct evidence in the record to[5] the effect that the defendant did actually alienate the affections of the husband; what was said by her to Billy on the subject is, of course, veiled in obscurity, except as to those matters related by Billy to his wife, hereinafter considered, but in cases of this character the evidence must of necessity be largely circumstantial. No one but the alienated spouse can state positively that the actions of the defendant influenced his conduct, and this, under the circumstances of such a case, he could not be expected to do. (Moelleur v. Moelleur, 55 Mont. 30,173 P. 419.) The insidious practice calculated to alienate affection is like fraud which "conceals itself" and cannot be proved by direct evidence, "does not move on the surface in straight lines. It goes in devious ways. We may with difficulty know `whence it cometh and whither it goeth.' * * * It is rarely that we can lay our hand upon it in its going. We are more likely to discover it at its destination, before we know that it has started upon its sinuous course. When we so discover it, the searchlight of a judicial investigation goes back over its trail and lightens it from beginning to end. As the woodman follows his game by slight indications, as a broken twig or a displaced pebble," it may "become apparent by innumerable circumstances, individually trivial, but in their mass `confirmation strong as proofs of holy writ.'" (Quotations from Merchants' NationalBank v. Greenhood, 16 Mont. 395, 41 P. 250, 259.)
As is said in Nelson v. Nelson (C.C.A.), 296 Fed. 369, 375: "We must not be unmindful of the fact that human experience of this kind, resulting in a broken home, results from an accumulation of efforts, stealthily carried on. This disintegrating work may be resorted to with many subterfuges. A plaintiff may not produce the strongest kind of evidence to make out a case. A sulky mood, an insolent look, a gloomy *Page 509 manner, a constant derision and undermining of the affection of the one for the other with malice, will accomplish the result and will suffice in the necessity of legal proof. The fact that evidence is circumstantial does not impair its usefulness nor deprive it of potency."
We think the record discloses a course of conduct indulged and persisted in by the defendant from the moment she was notified of the imminent wedding down to the time of the final break between husband and wife, from which the jury might justifiably say that she was employing every means open to her to cause the breach, wean Billy from his wife, and insure his future sole allegiance to herself. Let us see, conceding this to be so, whether the evidence is sufficient to warrant a verdict in favor of the plaintiff.
A cause of action for the alienation of affections would seem[6] to consist of three elements: The wrongful conduct of the defendant, plaintiff's loss of the affection or consortium of the other spouse, and a causal connection between such conduct and loss. (4 A.L.R. 505.)
The law does not require anything from parents-in-law, except[7] that they do not meddle with the domestic felicity and affections of their son and his wife. The parents may hold aloof, refuse to recognize the wife, show no interest in her children, and cut the son off without a penny for marrying without their approval, and are not to be penalized for so doing, provided they are not guilty of some intentional acts which tend to alienate their son's affection for his wife, without good cause. (Cooper v. Cooper, 102 Kan. 378, 171 P. 5; Woodhouse v.Woodhouse, 99 Vt. 91, 130 A. 758.) If, however, the parent does not choose to stand aloof or advise the child that, because of his or her marriage, the parent is through with the burdens of parenthood, and instead sees fit to seek to hold the child to an allegiance to the parent, and to wean him, or her, from the spouse of whom the parent does not approve, the parent does so at his or her peril.
All that the defendant did or said, if accompanied by a refusal on her part to take the young people into her home, *Page 510 might come within the above rule, but, when her acts and declarations were accompanied by a reception of the couple into the home, and the bending of every effort to keep the husband there, and then to impress upon him his duty to live with her as long as she should live, that his marital relationship could continue but a short time anyway, and to impose upon him a penalty for continuing that relationship, an entirely different situation is presented for the jury's consideration.
The marriage of a child does not terminate the right of the parents to interest themselves in the child's welfare or happiness; a parent may go so far as to cause a breach in the marital relations of the young couple for good cause and in good faith — as where the other spouse is guilty of ill treatment, drunkenness, immorality or wantonness (30 C.J. 1129, and cases cited); but in this land of religious liberty it can hardly be said that a difference of religion is sufficient cause for interference, after the young folks have married. It is said that the opinion in Rice v. Rice, 104 Mich. 371, 62 N.W. 833, is to the contrary, but that case goes no further than to hold that the father had a right to object to his son's marrying a Roman Catholic, and that he had a right to advise his son that he was unwise in living with his wife if she remained in the church, and that advice given after the son had separated from his wife would not afford a cause of action. But undoubtedly a parent who, from improper motives, induces a daughter to leave her husband, or a son to leave his wife, may be liable in damages for such tort,[8] and it has been held that proof that a separation between husband and wife has been caused by the unwarranted interference of the former's parents, accompanied by threats to disinherit him, is sufficient to enable the wife to maintain an action against and to recover from them. (13 R.C.L. 1471; Price v.Price, 91 Iowa, 693, 51 Am. St. Rep. 360, 29 L.R.A. 150, 60 N.W. 202.)
But it is said that more proof is required to sustain such an[9] action against a parent than against a stranger. Good *Page 511 faith and a proper motive will exonerate the parent from liability, and, therefore, in an action against a parent, malice must be shown. (Moir v. Moir, 181 Iowa, 1005, 165 N.W. 225;Meek v. Meek, 118 Kan. 106, 233 P. 1032; Kadow v.Kadow, 195 Wis. 650, 219 N.W. 275; Birchfield v.Birchfield, 29 N.M. 19, 217 P. 616.) With this statement we agree, and we also agree that, as affected by the motive of the defendant, the cases against parents of the spouse whose affections were alleged to have been alienated are distinguished from those against strangers; in such a case the plaintiff must show that the defendant acted with malice toward the plaintiff (Bourne v. Bourne, 43 Cal. App. 516, 185 P. 189; Tucker v. Tucker, 74 Miss. 93, 32 L.R.A. 623, 19 So. 955; Cooper v. Cooper, above); but this proof need not be direct — it may be implied or deduced from the facts and circumstances related (Hutcheson v. Peck, 5 Johns. (N.Y.) 196; Warren v.Graham, 174 Iowa, 162, 156 N.W. 323; Moir v. Moir, above;McAllister v. McAllister, 72 Colo. 28, 209 P. 788; Biggs v. Biggs, 78 Colo. 310, 241 P. 539), and the "malice" here requisite need not spring from a mean, hateful, or revengeful disposition, but may imply conduct injurious to another, though proceeding from an ill-regulated mind not sufficiently cautious before it occasions the injury. (Roberts v. Cohen, 104 Or. 177,206 P. 293.)
It is not necessary that there should have been any spite or hatred on the part of the defendant toward the plaintiff, or bad feeling existing in order to constitute malice within the meaning of the decisions on this question, but any wrongful act done intentionally, tending to injure, and done without just cause or excuse, is malicious. (Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397; Gee v. Culver, 13 Or. 598, 11 P. 302;Boland v. Stanley, 88 Ark. 562, 129 Am. St. Rep. 114, 115 S.W. 163.)
In Smith v. Smith, 192 Mich. 566, 159 N.W. 349, it is declared that, in such a case as this, malice is established whenever it is shown that the parent has interfered with a son's or daughter's domestic relations simply to gratify the dislike or *Page 512 hatred of such parent for the intruding spouse, and it is said: "In the instant case, if plaintiff's husband was induced to leave her and to withdraw his affections from her by the conduct or solicitations of defendants, purposely directed towards that end, then it must be held that they were actuated by malice."
So here, on the evidence, both direct and circumstantial,[10] tending to show such interference by defendant in the marital relations of the young couple as to warrant the young husband in believing that he could never live in peace and harmony with both his wife and his mother, and the latter's insistence that he do remain with her, we think malice, within the meaning of the above authorities, was sufficiently shown, and that the evidence as a whole was sufficient to uphold the verdict and judgment.
2. Numerous specifications of error are made upon the admission of testimony given by plaintiff regarding statements made to her by her husband, in the absence of defendant, as to acts and declarations of defendant to him and direction as to what plaintiff's attitude toward the defendant should be. Many cases are cited to support defendant's position that this testimony was all hearsay and inadmissible for any purpose.
Much of this testimony is along the same lines as the showing[11] of defendant's acts and declarations by admittedly competent evidence, and, even if improperly admitted, could not have prejudiced defendant's substantial rights. This testimony is to the effect that Billy told his wife that his mother had objected to his marrying a Catholic, to his being married by a priest, and to his signing the agreement that any children of the marriage should be raised in the Catholic faith, but further that plaintiff and defendant could never be friends, and plaintiff should not oppose defendant by arguing with her on any subject, as defendant would "get" her if she could. This testimony was only admitted for the limited purpose of showing Billy's mental condition or attitude at the time in consequence of his mother's attitude toward the wife, and at the time the testimony was admitted the court cautioned *Page 513 the jury as to the purpose of its reception, and that they should not consider it as proof that defendant had made the statements or committed the acts recited, and later instructed the jury on the subject in part as follows: "Each and all of these were admitted, not as evidence of the truth of any such statement or alleged declarations, but they were admitted solely and only to prove and 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." We must assume that the jury obeyed the instruction of the court.
The defendant requested the court to instruct the jury that[12-13] "this evidence was not admissible for any purpose and should not be considered." In addition to predicating error upon the admission of the testimony, defendant contends that the court erred in giving the foregoing instruction and in refusing to give the offered instruction.
There is a diversity of authority on the admissibility of such testimony, but it arises mainly from the different methods in which it was sought to get the evidence before the jury and the limitations or want of limitations placed upon the purpose for which it was admitted in each case. The line of demarcation drawn by the authorities between those matters to be admitted and those to be excluded to show the state of mind and the reactions of the alienated spouse is left somewhat in a twilight zone, dependent upon the circumstances of each case. The general rule is that such evidence is hearsay and not admissible. This is the rule announced in McGowan v. Armour, 248 Fed. 676, 160 C.C.A. 576, relied upon by defendant, wherein the plaintiff in an alienation case was permitted to state what her husband had told her the defendant had said to him. Holding that error was committed, the court said: "In the main no attempt was made to lay a foundation for this hearsay evidence. It was not produced as expressive *Page 514 of the husband's feeling, or as so intimately connected with any act of his as to be part of such act within the verbal act rule; on the contrary it was elicited as a mere narrative by the husband of a past conversation between him and defendant." The court then comments on the holding in Hardwick v. Hardwick,130 Iowa, 230, 106 N.W. 639, wherein testimony by the wife to the effect that the husband had told her that his father wanted him to leave her was admissible, saying: "This, however, was given as explanatory of a violent outburst of love and weeping on the part of plaintiff's husband." The court also quotes from Wigmore on Evidence, section 1730, to the effect that an exception to the hearsay rule exists in alienation cases where the state of the affections of the husband or wife become material.
In an exhaustive note to Melcher v. Melcher, 102 Neb. 790,169 N.W. 720, found in 4 A.L.R. 492, it is said: "In some jurisdictions, * * * the declarations of the spouse whose affections are claimed to have been alienated, are held admissible for a limited purpose, though they refer to defendant's acts or conduct." Under the heading "Declarations concerning acts or attitude of declarant's relatives or friends charged with alienating declarant's affections," many cases are given in this note wherein declarations of this nature were allowed to go into the record without qualification as to their purpose, and the rulings are held erroneous, while other cases are cited holding that such admission does not constitute error. Under the head of "Admission for limited purpose" the author of the note states the three elements of an action for alienation of affections as above: The wrongful act, the loss, and the causal connection, and then says: "Probably all courts would agree that the declarations of the alienated spouse concerning the acts and conduct of defendant are not admissible to prove the first of these elements, that is, defendant's guilt. The courts which hold such declarations admissible for any purpose usually lay stress on the fact that they are not admissible for the purpose of showing such guilt. * * * And probably all courts which hold such declarations admissible for any purpose would agree that they are admissible for the purpose of *Page 515 proving the third element. That is, when defendant's misconduct has been shown, and it has also been shown that the husband and wife have separated or that plaintiff has lost the affections of the other spouse, such declarations are held admissible to show that the separation, or the loss of affection, was the effect of such misconduct, and not the effect of some other cause." A respectable line of authority is cited in support of this proposition. The author then says that: "Some courts, however, seem to go beyond this, and hold that the declarations are admissible" for other purposes enumerated, even to the extent of tending "to prove the loss of affections * * * as well as the cause of such loss."
As to the husband's cautionary remark to his wife that, owing to their differences on the question of religion and his mother's objection to the marriage, the two women could never be friends, and the wife should yield to the mother, not argue with her, as she would "get" her if she could, we think in such a case as this the evidence was admissible to show the young man's reaction to the attitude of his mother and his desire to hold the affection of his mother even at the discomfiture of his wife.
On the whole, limited as to purpose as it was, and but reflecting the attitude and the acts and declarations of the defendant as shown by competent evidence, both direct and from which the jury were entitled to draw the inference of active interference, we hold that no prejudicial error was committed either in admitting the evidence or in the giving of the quoted instruction and the refusal of the proposed instruction.
3. Defendant contends that prejudicial error was committed in[14] permitting the witness Barrille to testify to defendant's alleged address to her husband's picture, as the alleged statement is said to have been made before the marriage, and was not communicated to either the husband or wife. We think the evidence was admissible as tending to show motive and malice, and so closely related to the acts and conduct of the defendant immediately thereafter as to constitute a part of the resgestae. *Page 516
We have examined the remaining assignments of error argued, respecting the admission of evidence, and without further encumbering the record by recitation and citation, we find no reversible error in this respect.
4. Finally, it is contended that the verdict for $20,000 is[15-16] excessive. It is urged that, with the question of support removed by the award of alimony in the divorce proceeding, and the jury instructed to that effect, the size of the verdict denotes passion and prejudice on the part of the jury.
In this class of actions there is no scale or yardstick by which the amount which will compensate for the loss suffered can be measured, and a wide latitude must be allowed for the exercise of judgment by the jury. In addition to support, a wife is entitled to the aid, protection, affection and society of her husband, and damages for the alienation of a husband's affection include, not only such compensation as the jury may deem just and proper, under the evidence, for the loss of these, but compensation for the humiliation and suffering inflicted upon the deserted wife. (Sutherland on Damages, 4th ed., sec. 1285.) In this respect, the verdict is in the nature of punishment, and a larger verdict is required to punish one of wealth than one not so fortunately situated. (Audibert v. Michaud, 119 Me. 295,111 A. 305.)
Here it appears that the defendant is worth upward of a quarter of a million dollars; the verdict is for $20,000. Many cases have been called to our attention wherein verdicts as large, or in excess of, the present verdict have been sustained, although the defendants were in no better position to pay the judgment than is this defendant.
A new trial on the ground of the excessiveness of the verdict can be granted only when the verdict is so excessive as to evidence passion and prejudice on the part of the jury. (Sec. 9397, Rev. Codes 1921.) If we should reverse the judgment and remand the cause for a new trial on this ground alone, we would, in effect, substitute our judgment for that of the jurors and instruct a subsequent jury that it should render a verdict for a less amount, and how should we determine what *Page 517 would be a reasonable amount under the circumstances? We might reduce the verdict, but on what facts found in the record could we say: So much would be reasonable, so much excessive? How are we to gauge the loss or suffering of the plaintiff for the loss of the affection and companionship of a wealthy and pleasure-loving husband and the assistance of a father in the case of an ailing child? These matters are best left solely to the sound judgment of the jury, and such a judgment should be set aside only when it is manifest that the verdict was rendered under the impetus of passion and prejudice. Here we cannot say that such a showing is made.
Slightly paraphrased, the remarks of the supreme court of Washington, made in the opinion in Regenvetter v. Ball,131 Wash. 155, 229 P. 321, are peculiarly pertinent here: "The question of the amount of recovery is solely for the jury. The court may not substitute its judgment for the judgment of the jury, however much it may be dissatisfied with the verdict returned. Its power in this respect is limited to granting another trial, or * * * giving the plaintiff the option to accept a lesser sum * * * or submit to another trial. But there must be a limitation to the exercise of this power else it may result, because of the exhaustion of the plaintiff or her resources, in the denial of recovery at all. The tribunal the law appoints to measure the plaintiff's recovery has, in this instance, twice returned awards substantially in the same amount, and nothing in the record indicates that there would be a different result were the plaintiff to be compelled to resort to a third. It is our opinion that an injustice would be done plaintiff if compelled to resort to another trial, and that the judgment should be affirmed."
After a careful and exhaustive review of the record, we are of opinion that, if the judgment were reversed and the cause sent back for a new trial with all questioned evidence excluded, a third trial would result no different than did the two trials accorded these parties, and a reversal of the judgment would but lead to further litigation and expense. *Page 518
For the reasons stated, the judgment is affirmed. Remittitur forthwith.
ASSOCIATE JUSTICES GALEN and FORD and HONORABLE O.F. GODDARD, District Judge, sitting in place of MR. JUSTICE ANGSTMAN, disqualified, concur.