(dissenting). The decision in this case hinges on the admissibility in evidence of certain testimony relating to a conversation between plaintiff and her husband. The testimony clearly shows that the husband had become estranged from his wife, which entrangement or alienation was evidenced by many acts, one of which acts was a certain letter wriiten to her. The gist of this action is the estrangement or alienation of the plaintiff’s husband from her, alleged to have been caused by a false and slanderous story, originated and circulated by the parents of the husband. The entrangement caused theieby was a continuing mental condition, was continual mistreatment of his wife, and a seeking by him to cast her off and bring about a separation. There was plenty of evidence in this case that the defendants ■originated and circulated this false story about the plaintiff. Independent testimony, outside of the statements of the husband, was adduced, showing that defendants originated and circulated the false and slanderous statement concerning plaintiff. It ap*245pears that the husband and wife -were not living together at the time this conversation in question occurred. This conversation related to the estrangement that then existed between the husband and wife — it related to and was a part o.f the then existing res gestae of the subject-matter of this action. The question propounded to the witness was :
“You may state what your husband said to you then in regard to why he had written this letter, and why he had done, as he did?”
This question was objected to as hearsay, not in the presence of, and not binding on defendants. The objection being overruled, the plaintiff in substance said that her husband said in answer to said question. that defendants had told him that he was not the father of the plaintiff’s child, then a few months old. It seems to be the view of the majority opinion that, while this evidence was competent to show the husband’s state of mind, it was not competent to show what caused such state of mind; in other words, it was not competent to connect the false statements of defendants as the cause which produced the husband’s said state of mind. I am of the view that this contention is not tenable. I am of the view that this evidence was a part of the res gestae, was within the verbal act doctrine, and was perfectly competent for the purposes of showing what was the cause that produced the injury to plaintiff, namely, the alienation of the affections of her husband. The injury complained of in this case was the alienation of the husband’s affections; in other words, the injury, was the estranged state of the husband’s min'd. This testimony in question was not evidence of the origination and circulation of the false stories by defendant, as to that proposition it was hearsay. That' defendants did originate and • tell such false story is amply proven and established by the testimony of Hayward and others, but to connect and show such false story to have been the cause of the said injury to plaintiff the evidence in question was competent. This rule is sustained by what I consider the very best of judicial authority. In the case of Elmer v. Fessenden, 151 Mass. 359, 24 N. E. 208, 5 L. R. A. 724, the decision of the Massachusetts Supreme Court, in an opinion by Holmes, J., sustains this view. In that case the plaintiff was a manufacturer employing *246■many workmen, and defendant was a member of a board of /. health. The plaintiff brought suit against the defendant for telling a false and slanderous story to the effect that plaintiff used .arsenic in his manufactory in such manner as to endanger his workmen, which false story plaintiff alleged alienated and caused his workmen to leave him. Precisely the same principle is involved as in the case at bar. The superintendent of the plaintiff, .who had charge of the workmen, was called as a witness, and asked what the workmen said as to their reason for stopping work. This evidence was excluded. Another witness was asked, “From whom, was this report stated to you to have come, if from any one?” Objection was also sustained to. this testimony. In rendering this opinion reversing the ruling of the trial court excluding this testimony, the Supreme Court said:
“It was a part of the plaintiff’s case that the cause of his workmen’s leaving his employment was the defendant’s false story. If, as may be assumed, the excluded testimony would have shown that the workmen, when they left, gave as their reason to the superintendent that the defendant had told them that the board of health reported arsenic in the silk, the evidence was admissible to show that their belief in the presence of poison was their reason in fact. Lund v. Tyngsborough, 9 Cush. [Mass.] 36, 41, 43; Aveson v. Kinnaird, 6 East. 188, 193; Hadley v. Carter, 8 N. H. 40, 43; U. S. v. Penn, 13 N. B. R. 464, 467 [Fed. Cas. No. 16,025]. We cannot follow the ruling' at nisi prius in Tilk v. Parsons, 2 Car. & P. 201, that the testimony of the persons concerned is the only evidence to prove their motives. We rather agree with Mr. Starkie that such declarations, made with no apparent motive for misstatement, may be better evidence of the maker’s state of mind at the time than the subsequent testimony of the same persons.' Starkie, Ev. (10 Amer. Ed.) 89. As a rule, such declarations are not evidence of the past facts which they may recite. The cases in which they have been admitted to prove the cause of a wound or injury, when the declarations were made at the time, or immediately, after the event, if not exceptions to the general rule, at least mark the limit of admissibility. Commonwealth v. Hackett, 2 Allen [Mass.] 136, 140; Commonwealth v. McPike, 3 Cush. [Mass.] 184 [50 Am. Dec. 727]; Insurance Co. v. Mosley, 8 Wall. 397 [19 L. Ed. 437]. The excluded testi*247mony was not competent to prove .that the defendant did .tell the workmen the story. As to that it was mere hearsay, and was not within the scope of the special reasons which led to the decisions last cited. Roosa v. Loan Co., 132 Mass. 439; Chapin v. Marlborough, 9 Gray [Mass.] 244 [69 Am. Dec. 281] ; Bacon v. Charlton, 7 Cush. [Mass.] 581, 586; Aveson v. Kinnaird, ubi supra; People v. Thornton, 74 Cal. 482, 486, 16 Pac. 244. It is admitted, however, that there was independent testimony that the defendant spoke to the workmen, and therefore the exceptions must be sustained.”
It is very apparent that this Massachusetts decision is based on the ground that the statements of the workmen to the superintendent of .plaintiff were competent evidence to connect the false story originated by defendant with the state of mind of the workmen that produced the injury complained of; that such evidence was hearsay and incompetent as to the original telling of such false story, but was competent for the purpose of showing what caused the alienation. In the case at bar, the statements of the husband to the wife were competent to show that the false story of defendants produced the alienated state of mind, but was not evidence as to the origin of the false story itself — that was proven by Hayward and others.
There has been much contention in this case that the direct evidence of the husband was the only method of proving what caused his alienated state of mind; that the plaintiff was bound to call him as a witness in order to make out a case against the -defendants. The foregoing opinion of the Massachusetts court effectually disposes of that proposition. If a plaintiff in such a case ■could establish what produced the alienation only by calling the husband as a witness, such a plaintiff could practically be with-cut a remedy.
In this action, to make out her case plaintiff established the origin of the false story of defendants by Hayward and others, by the statements of the husband, made at the time he was casting her off, and giving her to understand that the society of prostitutes was preferable to hers, that he was acting as he did by reason of a false story told him by defendants. I am of the view that the plaintiff made out a good and sufficient prima facie cause of action entitling her to' judgment. These statements of *248the husband show the false story of defendants to have been the cause of the injury to plaintiff. If this does not make out a case, in what other manner could one be made out? It matters not how this false story got to the ears of. the husband,- whether directly from defendants or through others. The testimony shows defendants originated the false story, and that it was such story that caused the alienation. This court should not establish a rule that would leave a plaintiff in such a case practically without a remedy. Section 1714, Wigmore’s Evidence, fully sustains the proposition that the evidence in question was res gestae. Sections 1729 and 1730, also fully sustain the admissibility of the evidence in question, A thorough reading- of subdivision 2, § 1729, of Wigmore, and the notes thereto, will clearly demonstrate said testimony to be res gestae. The case of Baker v. Baker, 16 Abb. N. C. (N. Y.) 293, specifically holds that the declarations of the husband, at the time of leaving his wife, as to his reasons for leaving, were competent and a part of the res gestae. In the case of Williams v. Williams, 20 Colo. 51, 37 Pac. 614, being a case for alienation very similar to this, the court said:
‘‘It is a familiar rule that whenever it is proper to prove the doing of an act by a certain person, the declarations of such persons, accompanjdng the act and having- reference thereto, are admissible in evidence as explanatory of the act itself. In this case it was shown that defendant took an active part in her son’s affairs withi reference to his property, his residence, and particularly with reference to his relations to his wife. It was proper, therefore, that his declarations concerning such conduct on his mother’s part, and having reference to his separation or contemplated separation from his wife, should be submitted to the jury, for the purpose of enabling them, in connection with other evidence, to determine the cause or motive which prompted his separation from his wife. The trial court, in admitting such declarations, expressly limited them to such purpose, r Phil. Ev. 185-187; Baker v. Baker, 16 Abb. N. C. [N. Y. [ 302; 1 Greenl. Ev. §§ 108, 123 ; Rawson v. Haigh, 2 Bing. 99-104; Sessions v. Little, 9 N. H. 271; Tenney v. Evans, 14 N. H. 350 [40 Am. Dec. 194].”
In the case of Travelers’ Ins. Co. v. Mosley, 75 U. S. (8 Wall.) 397, 19 L. Ed. 440, the court said:
*249“Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Thqse expressions are the natural reflexes of what it might be impossible to show by other testimony. If there be such other testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As independent, explanatory, or corroborative evidence, it is often indispensable to the due administration of justice. Such declarations are regarded as verbal .acts, and are as competent as any other testimony, when relevant to the issue. Their truth or falsity is an inquiry for the jury.”
I am therefore of the view that the statements made by the husband in this case, at the time he was endeavoring to bring about a separation, and when the wife asked him why he acted as he did, were very proper testimony as explaining his conduct, and were the best proof as to what caused the injury to plaintiff. These statements of the husband were made at a time when the estrangement and alienation were occurring, and being exhibited, and did accompany the conduct of the husband which is a part of the res gestae. This point is sustained 'by section 1776, Wigmore, Ev. The case of Eund et al. v. Tynsborough, 9 Cush. (Mass.) 43, is directly in point. In that case the court said:
“Perhaps the most common and largest class of cases in which declarations are admissible is that in which the state of mind or motive with which any particular act is done is the subject of inquiry. Thus, where the question is as to the motives of a debtor in leaving his house and going and remaining abroad, so as to determine whether or not an act of bankruptcy has been committed, his declarations when leaving his house, and while remaining abroad, as to his motives for leaving his house and for remaining abroad, are admissible in evidence. .Such declarations, accompanying the act, clearly belong to the res gestae. They are calculated to elucidate and explain the act, and they derive a degree of credit from the act.”
There are numerous other decisions which sustain the admissibility of said evidence for the purpose of showing the cause that produced the injury complained of.
The respondent made out a good case, free from, prejudicial error. The judgment appealed from should be affirmed.
*250SMITH, P. J.I think the views of my majority Associates give a too restricted interpretation to the term res gestae, as applied to the facts in a case of this kind. In such an action a desertion of the wife by the husband is merely a culmination of wrongful acts, and is not itself the ground of the action. The vital question is whether the acts complained of caused or contributed to the loss of the husband’s affections. The desertion is, of course, competent evidence of the loss of conjugal affection, but the act of desertion is not the res gestae of the cause of action. The alienation of the husband’s affections, accomplished by wrongful acts of defendants, constitutes the res .gestae of the cause of action, and in point of time includes the entire period of, and any and all wrongful acts which may have contributed to such alienation.
“The act done” is the final alienation of the husband’s affections, which may have been caused, hot by any single wrongful act, but by a whole course of wrongful conduct and numerous acts or statements covering a long period of time. Such acts, no matter how extended the period of time covered, so .long as they may have contributed the final result, constitute a part of the res gestae. Declarations made “at the time of the act done,” declarations made within the period of time covered by the process of alienation, are therefore res gestae, if they are such as to characterize and are calculated to unfold the nature of the ultimate fact, alienation, and are of such character as to explain and harmonize with and obviously constitute one complete transaction.
The letter referred to in the question alleged to be error, said:
“I don’t mean a divorce as I never expect to get one and don’t ask it, but think we had better sign papers of separation at once, as it will be better all. around. I can't explain at present what this is. I wish I could.”
The.answer to the question asked the wife at the trial called for this deferred explanation, and she was permitted to give it. The explanation as stated by her was that his parents (the defendants) had told him her little baby, just a few months old, was not his child; that he was not the father of the child. Such a statement to him by his parents, if made, was a fact which’ explained and characterized his state of mind and feeling towafd' *251his wife when he wrote the letter demanding a separation, ánd the explanation he gave her was j ust as competent as though he had written it into the letter. I do not see, therefore, how my Colleagues can say,
“There is nothing in the letter, however, that shows any .loss of affection on the part of -the husband, nor was there anything -said or done by him during said conversation to indicate that -he had lost confidence in her, or intended to abandon or desert her. Sb far as anything said to the plaintiff' by her husband is concerned', the intention to abandon her was formed at some subsequent time, and for some cause other than that assigned by her. This being the case, the words attributed to him by plaintiff in answer to the question complained of did.not accompany the act of abandoning her, nor- constitute any párt thereof, nor was it contemporaneous with that act.”
The statement made to her was certainly competent evidence tending to show the state of . the husband’s mind when he wrote the letter, and there is nothing in the conversation testified to by her which tended to show any change in his attitude toward her. I am therefore of the view that such statement was contemporaneous with the act complained of — the alienation of the husband’s affections — and was a part of the res gestae of the cau.se of action. In view of the fact that my majority Associates do not concur upon other phases of the case, I shall not discuss them.