Dissenting. — This is an action by plaintiff Jacob Schneider against defendant George Tapfer for damages for the alienation of the affections of plaintiff’s wife Mary Schneider who is the daughter of the defendant.
The gist'of the complaint is that plaintiff and Mary Tapfer were married August 1, 1912, and now are husband and wife having two children, the issue of such marriage; that the plaintiff and his wife lived happily together as husband and wife; that during September, 1916, and for a long time prior thereto the defendant wrongfully contriving and intending to injure the plaintiff and to deprive him of the love, comfort, society and assistance of his wife, wrongfully, purposely and maliciously by his conduct and conversation with the wife and by false representations and insinuations so prejudiced and poisoned the mind of the wife against the plaintiff and so alienated her love and affection from the plaintiff that the wife acting on the advice, influence and direction of the defendant did during September, 1916, leave the plaintiff and his home and return to the home of the defendant and has since remained away and refused to return. • It is also *553alleged that in order to accomplish the above purpose, the defendant induced the plaintiff to purchase the stock and outfit on the Palatine Hill dairy and rent the real estate from the defendant and assume a mortgage held by the defendant and incur other indebtedness to defendant, and that defendant foreclosed the mortgage and took all of the lease and dairy away from the plaintiff.
The answer after admitting the marriage and number of children and denying the remainder of the complaint, affirmatively sets forth that defendant has always acted for plaintiff’s welfare; that defendant foreclosed on the dairy to protect his interests and upon the advice of his attorney, all without malice toward the plaintiff, and that— -
“Defendant had at all times regarded plaintiff with affection and has at all times attempted to do only such acts as seemed to this defendant to he for the general welfare and benefit and happiness of the plaintiff and his family.”
The reply put in issue the new matter of the answer. The cause was tried to the court and a jury and a verdict rendered in favor of plaintiff. Defendant appeals.
BEAN, J.There are practically two questions presented upon this appeal. Upon the trial the counsel for defendant objected and excepted to the introduction of evidence on the part of plaintiff tending to show statements made by the wife of plaintiff a short time before the separation September 5,1916, as to the conduct and statements of her father, the defendant, contending that such testimony was merely hearsay. As an example, the plaintiff testified that his wife told him that her father informed her that as long as she *554lived with the plaintiff she would receive nothing from her father.
It should he noticed that the issue involved the state of Mary Schneider’s mind at and immediately before the time she separated from her husband. This cannot ordinarily be shown by direct proof. It is for the jury to make its inference from the testimony in order to solve a question of fact of this character.
In an action by the husband against his wife’s father for the alienation of the wife’s affection, declarations of the wife concerning conduct on the part of her parent before the separation, and having reference to her separation from the plaintiff and to inducements held out to the wife to abandon plaintiff are competent for the purpose of showing the mental attitude of the wife, and the cause which promoted the separation, but not as evidence of the-truth of the declarations: 13 R. C. L., § 527, p. 1478; 6 Ann. Cas. 664, note; 1 Greenleaf on Ev. (16 ed.), § 162d; 3 Wigmore on Ev., §§ 1729, 1730; Price v. Price, 91 Iowa, 693, 701 (60 N. W. 202, 51 Am. St. Rep. 360, 29 L. R. A. 150); 21 Cyc., p. 1624; White v. White, 140 Wis. 538 (122 N. W. 1051, 133 Am. St. Rep. 1100); Hardwick v. Hardwick, 130 Iowa, 230 (106 N. W. 639); Williams v. Williams, 20 Colo. 51 (37 Pac. 614); Nevins v. Nevins, 68 Kan. 410 (75 Pac. 492); Horner v. Yance, 93 Wis. 352 (67 N. W. 720); Hillers v. Taylor, 116 Md. 165 (81 Atl. 286).
In the latter case the court said:
“In that respect the defendant’s acts and utterances as recited by the spouse are not hearsay, and are1 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.”
*555To the same effect see: Ann. Cas. 1912C, note at p. 1182; Preston v. Bowers, 13 Ohio St. 1 (82 Am. Dec. 430); Saxton v. Barber, 71 Or. 230 (139 Pac. 334). There was no error in admitting the evidence complained of for the purpose of showing the state of mind of Mary Schneider, the wife of plaintiff.
At the proper time counsel for the defendant interposed- a motion for a nonsuit and assigns error in the refusal to grant the same, and now contends that the verdict is not supported by any competent evidence. The liability of defendant must be shown by testimony independent of the statements of the wife as to what her father had said and done.
It appears from the record that plaintiff Jacob Schneider was born in Switzerland and came to the United States in 1910, and to Oregon in 1911. He was then nineteen years of age and was engaged to work on the dairy of the defendant Tapfer, on Palatine Hill, and thus became acquainted with Mary Tapfer, defendant’s daughter, who was then a year younger. After he was there about five months they, fell in love and became indiscreet. Shortly after defendant took another dairy near Vancouver and the plaintiff went there in his employ. Plaintiff on account of a slight dispute quit work in July, 1912', and went back to the old place on Palatine Hill. He received a letter from Mary a few days later and also met her. On August 1, 1912, they were married without the knowledge of her parents. They went to Denver where plaintiff worked on a dairy for five months. They then went to Washington where plaintiff worked on a country-place near Bremerton for three months. About April, 1913, they came to Portland having about $800. Plaintiff worked on a dairy near Seappoose, she did housework in Portland. A little later she saw her parents, and *556plaintiff with his wife and baby went to her parents’ home near Vancouver where plaintiff worked until September, 1914, when the plaintiff rented a dairy near Holbrook, purchasing the stock. His wife remained with her parents for the first month until the second child, Arnold, was born. The plaintiff was industrious and frugal. He sold the Holbrook dairy realizing $1,400 cash. After consultation with the defendant, he, together with his partner Zumwalt, purchased the Palatine Hill dairy stock and fixtures for $5,000, paying the $1,400 cash, and with Zumwalt gave •a mortgage to Tapfer for $1,953.05, and assumed a small note. Mr. and Mrs. Schneider purchased Zumwalt ’s interest in May, 1916. Mrs. Schneider abandoned plaintiff September 5, 1916. About October 25, 1916, she commenced an unsuccessful suit for a divorce. On October 17, 1916, Tapfer foreclosed the mortgage for $1,953.05 and brought action on the note against plaintiff for a balance of $646 and ousted the plaiiitiff from the'premises.
In regard to the relations existing between the plaintiff and his wife before and at the time of the separation, and as to the conduct of the defendant, part of the testimony was as follows: Theodore Villiger, witness for plaintiff, testified in substance that he had run the Palatine Hill dairy and sold the same to plaintiff “and his partner Zumwalt for $5,000. That at one time defendant said plaintiff Schneider was a fool and a greenhorn, and that kind of stuff, and was no business man; that he could see that defendant did not like plaintiff. Mrs. Lillian Reiser, witness for plain-, tiff, testified to the effect that she and her husband went to work at the Palatine Hill dairy August 25, 1916; that they lived in the house with plaintiff and his wife who lived as happily as any married people *557could; that she was loving to him, kissing him, spoke well of him, and never complained; that Mr. Tapfer, the defendant, was there at the home of plaintiff on September 4r-1916, the day before his wife left to go home; that Mrs. Schneider expected to visit her parents and had made arrangements to leave the little girl with the witness; that Mr. Tapfer told his daughter she had better bring both children with her; that Mrs. Schneider said she would be back in a week or ten days; that she never came back; that plaintiff sent the witness to the father’s home in Washington to try to beg her to come back, “and that evening I tried to beg her to come back home, and she consented that I could take the little girl, and the next morning she backed out and said I could not take her.” She was then living in her father’s house; that the witness told Mr. Tapfer she tried- to coax her to come back, and let them take care of their children as a father and mother ought to do, and that he did not say anything one way or the other; that on the fourth day of September, when Mr. Tapfer came to plaintiff’s home, he was there during dinnertime and that Mrs. Schneider was sick and her father “asked her how she was getting along, and she said she wasn’t any better. He asked her if she had finished paying the doctor’s bill. She had went and had an abortion performed, and she said ‘No,’ and he laid down a twenty-dollar gold piece on the kitchen table for her to go and finish paying the doctor bill.” That the next morning after Mrs. Schneider left home, Mr. Tapfer called the witness over the telephone twice and asked her if Mary had started, she was supposed to meet her father and go home with him; that he was impatient to know whether or not Mary was coming.
*558In answer to the question, “What did you tell him on the second call?
“A. I told him she said — he said for her to come up to your office, Von Hoomissen’s office, and I told him that was where she was going.
“Q. How did you know she was coming up to my office?
“A. That is what she told me to tell him if she missed him. She would meet her father at your office. ’ ’
She left that morning with the two children.
Emil Reiser, husband of the former witness, testified that plaintiff and his wife got along well together; that they were very loving and affectionate.
Anne 0 ’Keefe, witness for plaintiff, testified to the purport that she lived on Palatine Hill about a quarter of a mile from plaintiff and his family, and that she and the Schneiders frequently visited; that as far as she could see Schneider and his wife got along as nice as any married couple, they were jolly, friendly and affectionate, they always had lots of fun together in the evening. This witness stated that she had a talk with Mrs. Schneider when she was very sick; and that she said “that she had had an abortion performed; that he [Schneider] did not want me to have it done. ” I said, “I would never tell anybody about that,” and she said, “I never told anybody but papa qnd you, Mrs. O’Keefe.”
Plaintiff, Jacob Schneider testified in his own behalf in substance that he and Mary Tapfer, the daughter of the defendant, were married August 1, 1912; that before they were married he worked for the defendant on the Palatine Hill dairy and afterwards near Vancouver, commencing 1911; that he quit work about the Last part of July, 1912, went back to the old place on *559Palatine Hill and worked for a Mr. Naegiy for about two weeks; that Mary wrote to him that her father wanted him to quit and give her up; that they were married without the knowledge of her parents, and they went to Denver, Colorado, where they remained about five months, and then they went to a place near Seattle where they worked about three months, on a farm. That about the 12th of August, 1916, Mrs. Schneider told him as follows:
“She said she told her papa about it, that she was in the family way, and he told her to go to the doctor to have an operation performed. I told her on the phone I would not do such a thing. That as long as God give me two children he could give us another one and I was willing to raise the child.”
That after his wife left him September 5th, he went to see her three times. The first time about the middle of September. About that time Mr. Yon Hoomissen told him, “Well, Jake, your wife was here and she told me she won’t go back to you.” I said, “What is wrong?” And he said, “She said she don’t want any more children. ’ ’ That about ten or twelve days after his wife left him, after writing two letters, he went to Mr. Tapfer’s and asked to see Mary, and asked where she was; that her father told him she was in the City of Portland; that his wife afterwards told him she was cooking for a straw-baling crew about a mile and a half from her father’s place; that when he worked for the defendant “he was cross and rough against me”; that defendant called him an “ignorant fool” and “crazy,” he even called me “a s-of-a-b-”; that when the children cried defendant said they “were just like the old man”; that his wife told him that her father told her a few times that ‘ ‘ as long as she lives with me she wouldn’t get nothing. She *560wouldn’t get nothing from him.” That he had only seen his wife to speak to her in the lawyer’s office once since she left him; that he begged her to come back and that he begged her father to give her back; that there was no dispute or trouble when his wife left him. The plaintiff further testified that the defendant told him to his face that he was a fool; that he was a green, ignorant foreigner; “that I was no man for Mary.” Mrs. Mary Schneider, as a witness for the defendant, in answer to the question, “Why did you leave him [plaintiff] the last time?”
“A. Because be had gotten me into the family way, and I had an abortion performed, and hé had called me'a murderess and treated me without any consideration whatever, and he demanded me to work just as hard after that operation as when I was in perfect health, and I was so worn down and run down and sick that I couldn’t stand it to live with him any longer, and that was the reason I left. I thought if I stayed with him any longer my years were numbered.”
There was direct evidence tending" to show that the defendant stated to plaintiff that he was a fool and an ignorant foreigner; “that he was no man for Mary”; and that the defendant was instrumental in influencing Mary Schneider to leave plaintiff’s home when he told her on September 4, 1916, the day before she left that “you better come out with Hie and take the children along”; that the defendant had furnished his daughter with money when the husband "had refused to supply her with'funds for the purpose desired, and the further fact that he inquired of Mary whether she had finished paying the doctor and let her have $20 for that purpose; that before Mary left, defendant had a conversation with her in the German language which the witness Mrs. Reiser, who was present, could not under*561stand, and that when Mrs. Reiser at plaintiff’s request went to defendant’s home after the separation to induce the wife to return to her husband’s house, and she consented to let Mrs. Reiser take the little girl with her upon her return, that when Mrs. Reiser was talking to the defendant and Mrs. Schneider both in regard to the matter, the defendant said nothing and did not attempt to induce the wife to return to her home; that on the following morning the wife changed her mind and refused to let the child return with Mrs. Reiser, and further that when plaintiff visited the defendant’s home to beg his wife to return the defendant told plaintiff his wife was in Portland, when she was only a short distance away cooking for straw-balers ; that the wife left her husband on September 5, 1916, and never returned; that when she left she went direct to the office of an attorney who had done her father’s business for about two years before that time, and consulted him in regard to obtaining a divorce; that defendant telephoned to Mrs. Reiser about meeting his daughter at the law office.
From the statement of defendant to the wife at the time of the money transaction on September 4, 1916, and the other circumstances in evidence, the jury might fairly believe that the defendant knew about the criminal operation and that defendant aided and encouraged Mrs. Schneider in having the same performed against the will of her husband; that defendant maliciously influenced his daughter to leave her husband and remain away from her home; that when she left it was understood between her and her father that she was not going to her father’s home for a visit only, but to remain.
*562It is the claim of defendant’s counsel that the witness Lillian Eeiser “squarely perjured herself in relation to this transaction, and having heard of the passing of the $20 declared she saw it given.” This is certainly a very material incident as testified to by Mrs. Eeiser, but the truth or falsity of her statement is a question solely for the jury to determine. ' It is contended on behalf of defendant that the testimony ih regard to the defendant letting Mrs. Schneider have money for a certain purpose had no relation to the condition of the mind of the wife, and was incompetent, but the jury evidently came to a different conclusion in regard to the matter. This was the situation: Mrs. Schneidep had solicited the consent of her husband to have the operation performed and funds to pay for the same, and had been refused. She then •states that she went to her father and told him her trouble and received his approval and the money to pay the expense. Coiild the jury not believe from this that it would tend to lower the plaintiff in the estimation of his wife in failing to do for her what her father was willing to do? In her mind this was an important matter and according to her version as a witness related to the cause of her leaving the plaintiff.
Malice need not consist of open and affirmative declarations, but may be indicated by conduct and acts and in determining whether the defendant acted maliciously it is necessary to consider the circumstances, situation and relationship existing between the parties: Leavell v. Leavell, 122 Mo. App. 654 (99 S. W. 460). Some of the evidence is circumstantial and a large part of the testimony is contradicted by defendant. Nevertheless, it cannot by any process of reasoning be said that there was no competent evidence *563to support the verdict. In considering the testimony in this case, we should hot lose sight of the fact that according to the result of the divorce proceeding the plaintiff Jacob Schneider was not at fault. From that result it does not appear that there was any necessity for the defendant Tapfer to interfere and care for his daughter. The weight of the evidence and the credibility of the witnesses are solely for the consideration of the jury. There were no exceptions saved to the charge of the court to the jury. Much of the testimony was detailed by the witnesses without objection, both sides giving their version of all the main facts and circumstances of the case. In Price v. Price, 91 Iowa, 693 (60 N. W. 202, 51 Am. St. Rep. 360, 29 L. R. A. 150), an action by the wife against the parents of the husband for alienation of the husband’s affection, it was held that evidence that the defendants had threatened the husband with disinheritance if he continued to live with plaintiff; that while living happily with plaintiff he received letters from defendants which he refused to show plaintiff and immediately thereafter left, was competent to sustain a verdict for plaintiff. In the present case the threat that plaintiff’s wife would receive nothing from defendant as long as she lived with plaintiff is practically identical with that in the Iowa case. The conversation defendant had with his daughter in German just before she left the plaintiff corresponds with the suppressed letter in the case mentioned. It was for the jury to draw their own inference from these facts and circumstances taken in connection with the other testimony in the case.
In passing upon a motion for nonsuit on review, the appellate court will give the plaintiff the benefit of all *564the legitimate inferences that may fairly be drawn from the evidence. An assignment of error in denying such motion will be sustained only when there is no legitimate room for a difference of opinion as to the effect of the evidence, and when the court can say that there is no evidence tending to support the verdict in some essential .particular; this although the testimony of plaintiff is contradicted by that .of the defendant: Article VII, Section 3, Constitution of Oregon; Crowder v. Yovovich, 84 Or. 41 (164 Pac. 576); Sink v. Allen, 79 Or. 78 (154 Pac. 415); Johnson v. Portland Ry., L. & P. Co., 79 Or. 403 (155 Pac. 375).
The reciprocal obligations of parent and child endure through life, and the duty of discharging these divinely instilled obligations cannot be abrogated by the child’s marriage. The parent may in good faith counsel and advise his daughter who has contracted an unhappy marriage, and may care for her in the. parental home even against the expressed wish of the unfaithful.husband: Tucker v. Tucker, 74 Miss. 93, 98 (19 South. 955, 32 L. R. A. 623). Hence in an action against the father of plaintiff’s wife for the alienation of the latter’s affection, it is incumbent upon the plaintiff to show that the defendant was actuated by malice. In such a case the father under the cloak of parental kindness toward his daughter has no license to transcend both divine and human laws and counsel, encourage or aid the wife in the advancement of a petty whim or desire to have a criminal operation performed.
Taking into consideration all of the acts, and conduct of the defendant, his demeanor toward plaintiff, his statements to plaintiff, and his action soon after the wife left plaintiff, in harshly foreclosing the mortgage on the dairy property when plaintiff had succeeded in *565reducing- his indebtedness during the short time that he run the dairy under somewhat adverse circumstances, and attaching plaintiff’s property, and ousting the plaintiff from the dairy farm, it was for the jury to say whether the defendant evinced malice toward plaintiff. There was evidence tending to show such malice. A careful reading of all of the testimony, some of which has been referred to, leads us to conclude that there was no error in overruling the motion for a nonsuit.
Another assignment of error is directed to a conversation between plaintiff and Mary Tapfer immediately prior -to their marriage, in which she told the plaintiff that her father and mother “wanted her to quit altogether.” It was plaintiff’s contention that because of the runaway marriage and other circumstances pertaining to their union, defendant cherished a feeling of hostility toward him. This conversation threw a mere sidelight on the conditions existing at the time of the marriage.' The defendant went into' the same subject in his testimony. This testimony was of the same nature as that heretofore discussed. There was no reversible error in admitting the same.
The cause was fairly submitted to the jury. The judgment of the lower court should be affirmed.