Reversed September 29, 1914.
On the Merits.
(143 Pac. 1099.)
Department 1. Statement by
Mr. Justice Burnett.This action was commenced originally by Margaret Burns against the parents of her husband to recover damages for the alleged alienation of the affections of her spouse by the defendants. After judgment for the plaintiff she died, and this appeal is prosecuted on substitution of the present plaintiff as the personal representative of the deceased wife. The amended complaint, after stating the marriage of the plaintiff and her husband on August 17, 1905, and the marriage relation existing between the defendants, states that she and her husband lived happily together and that he was deeply attached to her continuously until August 1, 1912. The gravamen of the complaint is contained in the fourth allegation reading thus:
“That soon after said marriage, and in and during the years 1906 to 1912, defendants herein wrongfully and maliciously, and with intent to injure plaintiff, to deprive her of the comfort of her said husband’s society, support, love and assistance, and to alienate his affections for plaintiff, conspired together and *174sought, by coaxing, by threats to disinherit said Hollie Burns, by making disparaging remarks concerning the plaintiff, and by poisoning the mind of said Hollie Burns concerning the habits of plaintiff and concerning her religion, and in divers other ways, to induce said Hollie Burns to separate himself from the plaintiff and to abandon and desert her.”
She then charges that since August 1, 1912, on account of the alleged misconduct of the defendants, her husband’s affections for her had been alienated, and he had deserted and abandoned her to her damage in a sum specified.
The conjugal relations of the parties are admitted by the answer, which, however, traverses the complaint in many particulars, especially as to the excerpts quoted above. As new matter the defendants assert, in substance, that they did everything they could to promote the happiness of the young couple during their married life, and exerted all their influence to compose the little differences that often arise between young married people.
The new matter in the answer is denied by the reply. A jury trial resulted in a verdict and judgment for the plaintiff, from which the defendants appeal.
Reversed and Remanded.
For appellants there was a brief over the names of Mr. Edwin V. Littlefield, Mr. Isham N. Smith and Messrs. McCain, Vinton & Burdett, with oral arguments by Mr. Littlefield and Mr. Smith.
For respondent there was a brief over the names of Mr. B. A. Kliks, Mr. Marion B. Meacham, Messrs. Moser & McCue and Mr. William A. Williams, with oral arguments by Mr. Kliks and Mr. Meacham.
*175Mr. Justice Burnett delivered the opinion of the court.
4. The bill of exceptions propounded in the cause consists of a literal report of all the testimony, objections and argument of counsel, and remarks of the court exactly as they occurred at the trial. This was insufficient to support any of the assignments of error, except the one predicated on the denial of the motion for a nonsuit. After argument here the defendants applied to the Circuit Court and obtained an amended bill of exceptions intended to conform to the rules laid down in National Council v. McGinn, 70 Or. 457 (138 Pac. 493), and previous precedents. This, however, was stricken out on motion of the plaintiff, and the cause is now to be determined upon the correctness of the ruling of the Circuit Court in denying the motion for a nonsuit.
The plaintiff and her husband separated May 18, 1912, and both of them took measures toward obtaining a divorce; while the amended complaint asserts that the plaintiff retained the love and affection of her husband until August 1st of that year. No act or declaration of the defendants in any way relating to either the plaintiff or her husband is shown to have occurred later than the month of May, 1912, and it is manifest that her husband’s affections for her were not alienated by anything done prior to that time if we are to be governed by the plaintiff’s pleading.
Aside from that, however, a careful reading of the testimony leads to the conclusion that the allegation of the complaint charging tort upon the defendants is not proven, and that there was no competent testimony to go to the jury in support of that vital aver*176ment. The parents and the young couple lived together almost all the married life of the plaintiff and her hus- _ band. It was natural that with two households in one dwelling ,there should be occasionally some friction between the persons composing them, but in every instance of the kind, as disclosed by the plaintiff’s own testimony, her husband sided with her. She makes much of what he told her about the threat of his father to disinherit him, and, repeating the son’s statement to her, she declares that he told her his father would disinherit him because of his marriage to the plaintiff. There is no testimony, however, of anyone who ever heard the father threaten to disinherit the son on that account. Her statements in that respect were mere hearsay as against the defendants. It is true that there is evidence of a quarrel between the defendant’s father and the son in which the latter cursed the parent, who retorted that unless the young man amended his ways he would be disinherited; but on no occasion did the father ever assign the marriage relation existing between the plaintiff and the son as a reason for such a course. On a mere question of fact, a detailed review of the testimony would serve no lasting purpose in the reports of the state. It is sufficient to say that, in our judgment, the testimony fails to support the allegations in the complaint that the actions of the defendants were designed to alienate the affections of the young husband from his wife or that they had that effect. The true key to the situation is disclosed by the testimony of the plaintiff herself, who relates how she discovered that her husband had taken up with another woman. This solves the whole question.
*177The judgment for a nonsuit ought to have been entered and the cause is reversed, with directions to make that disposition of the matter.
Reversed and Remanded.
Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur.