upon the facts in the case. In some instances, apparently, some evidence was allowed that might better have been excluded; but, upon the whole record, so far as our attention has been called to it, it would not seem that the jury could have been misled by this evidence to the prejudice of the defendants. The defendants offered several instructions in regard to the right of parents to advise their children in matters of this kind. The first instruction offered was faulty, in that it would virtually instruct the jury that, if one of the parents acted in good faith, they must find a verdict in favor of both. The other requests which were refused, while they contained a suggestion that such advice of parents must be given in good faith, did not contain any explanation of what was meant by good faith, or what would be regarded as good faith under such circumstances, and were not, so far as they were proper instructions, more favorable to the defendants than the instruction given at the defendants' request, follows: "When parents of a minor child are accused and charged, as in this case, of alienating the affections of their minor son from plaintiff his wife, the giving of advice to the minor son in that regard is presumed to be given in good faith, and, if so given, the parent is not liable for advice so given."

as

An instruction given by the court on its own motion regarding this defense was pretty strongly stated

in favor of the defendants, and we cannot find any reversible error in refusing the requested instructions.

The defendants insist that the verdict for $4,750 was excessive, and is not supported by the evidence. The court instructed the jury Damares fully in regard to the various elements of plaintiff's damages, and concluded: "In no event can any sum be allowed by way of exemplary or punitive damages as a punishment of the defendants, but only such as, in the sound and honest judgment of the jury, would be a fair and just compensation for the injury, if any, which the evidence shows plaintiff has sustained as a direct and natural result of the defendants' wrongful

acts."

It is not urged in the brief that this instruction is erroneous. The difficult duty of determining these various elements of damage devolves upon the jury. There is no exact legal limitation that can be applied to the consideration of any of these elements of damage. We cannot say that from this evidence all reasonable minds must agree that this plaintiff has suffered less damage than the amount of this verdict.

The judgment of the District Court is affirmed.

Letton and Rose, JJ., not sitting.
Petition for rehearing denied.

I. Scope, 498.

II. continued.

or friends charged with alienating declarant's affections, 501.

d. Miscellaneous declarations, 503. III. Other objections, 505. IV. Admission for limited purpose, 505.

I. Scope.

As this note is limited to declarations concerning the defendant's acts or conduct, declarations concerning the declarant's affection or want of affection for plaintiff have, of course, been excluded, except when they accompanied declarations concerning the acts or conduct of defendant. Declarations concerning the declarant's affection for, or state of feeling towards, defendant, have, however, generally been included, though perhaps not strictly within the scope of the note. Questions as to whether declarations of the other spouse are inadmissible as confidential communications, and questions as to plaintiff's competency as a witness to testify to such declarations, have been excluded.

II. Evidence as hearsay.

a. In general.

In some jurisdictions, as will be shown in a subsequent part of this note, 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; but, subject to such exception, it is the general rule that such declarations are hearsay and inadmissible against defendant, in actions for alienation of affections or criminal conduct.

United States. - McGowan V. Armour (1918) 160 C. C. A. 576, 248 Fed. 676; Harper v. Harper (1918) C. С. А. -, 252 Fed. 39.

v.

California. Jameson Tully (1918) — Cal., 173 Pac. 577; Humphrey v. Pope (1905) 1 Cal. App. 374, 82 Pac. 223.

District of Columbia. - Dodge V. Rush (1906) 28 App. D. C. 149, 8 Ann. Cas. 671.

Illinois.-Huling v. Huling (1889) 32 Ill. App. 519.

Indiana.-McVey v. Blair (1856) 7 Ind. 590; Underwood v. Linton (1876) 54 Ind. 468.

Kentucky.-Leucht v. Leucht (1908) 129 Ky. 700, 130 Am. St. Rep. 486, 112 S. W. 845.

Massachusetts. - Sanborn v. Gale (1894) 162 Mass. 412, 26 L.R.A. 864, 38 Ν. Ε. 710.

Maryland. Kohlhoss v. Mobley (1905) 102 Md. 199, 62 Atl. 236, 5 Ann. Cas. 865; Hillers v. Taylor (1908) 108 Md. 148, 69 Atl. 715. Michigan, Edgell v. Francis (1887) 66 Mich. 303, 32 N. W. 501; Carter v. Hill (1890) 81 Mich. 275, 45 N. W. 988; Dalton v. Dregge (1894) 99 Mich. 250, 58 N. W. 57; Derham v. Derham (1900) 125 Mich. 109, 83 N. W. 1005.

Missouri.-McGinnis v. McGlothlan (1915) 192 Mo. App. 141, 180 S. W. 405.

Nebraska. Phelps v. Bergers (1913) 92 Neb. 851, 139 N. W. 632. New York. Cochran v. Cochran (1909) 196 N. Y. 86, 24 L.R.A. (N.S.) 160, 89 N. E. 470, 17 Ann. Cas. 782, reversing (1908) 127 App. Div. 319, 111 N. Y. Supp. 588; Buchanan v. Foster (1897) 23 App. Div. 542, 48 N. Y. Supp. 732; Billings v. Albright (1901) 66 App. Div. 239, 73 N. Y. Supp. 22; Hanor v. Housel (1908) 128 App. Div. 801, 113 N. Y. Supp. 163.

Ohio.-Preston v. Bowers (1861) 13 Ohio St. 1, 82 Am. Dec. 430; Westlake v. Westlake (1878) 34 Ohio St. 621, 32 Am. Rep. 397.

(1914) 41 Okla. 374, 138 Pac. 154.

Vermont. Townshend v. Townshend (1911) 84 Vt. 315, 79 Atl. 388; Sanders v. Burnham (1917) 91 Vt. 480, 100 Atl. 905.

England. - Robinson v. Robinson (1859) 1 Swabey & T. 362, 27 L. J. Prob. N. S. 91, 5 Jur. N. S. 392.

Thus, in a wife's action against another woman, she cannot testify that her husband told her that defendant expressed affection for him and asked him to get a divorce from his wife, saying that she had plenty of money and could take care of him, and that he did not have to do work like he was doing. McGowan v. Armour (1918) 160 C. C. A. 576, 248 Fed. 676. The court said: "Mr. Armour's statements, indicative of his own feelings, could be testified to by any person who heard him make such statements. It is also true that any statements made by defendant, indicative of her feelings towards Mr. Armour, might be given in evidence by any person who heard her make such statements. The vice of the evidence which was received in the present case is that plaintiff, who was testifying, did not hear the defendant make the statements. The statements were made to her husband. Her husband, however, was not a witness. He never told the court, under oath and subject to cross-examination, what the defendant's statements were to him. On the contrary defendant's statements were all run through one more conduit, namely, the plaintiff. She was permitted to tell what her husband told her that defendant had said to him. It is entirely plain that this went beyond any permissible rule."

In a similar case, where the husband had told plaintiff that defendant had given him money to spend, and said he shouldn't work any more, and demanded that he should marry her, so that she could be one of the "four hundred," the California court of appeal said: "There can be no doubt that the conduct and declarations of defendant material to the issue could be shown. But we cannot subscribe to the doctrine that the exigencies of this or any kindred case could justify a radical departure from well-settled rules excluding hearsay evidence of the character under consideration. The doctrine of res gestæ does not dispense with cardinal rules of evidence, requiring the best evidence in degree touching declarations or any other relevant fact. Declarations and admissions, whether part of the res gestæ, or admissible under other exceptions to the rule excluding that character of evidence, are hearsay, and to permit them to be proved by one other than the person hearing the statements, from the lips of the declarant, would be to prove hearsay by hearsay, and this is not permissible. 'Evidence of the oral admissions of a party' must be received with caution. Code Civ. Proc. § 2061; Jones, Ev. §297. And it would be throwing caution to the winds to permit a class of evidence so fraught with danger and temptation and so liable to errors and mistakes due to human forgetfulness

and fallibility." Humphrey v. Pope (1905) 1 Cal. App. 374, 82 Pac. 223.

In a wife's action against her husband's mother, the court admitted statements by the husband to third persons, indicating that the mother was endeavoring to cause a separation, but excluded similar statements made by the husband to the wife, apparently on the ground that they constituted confidential communication. The court of appeals held that both sets of statements were inadmissible, as hearsay. Leucht v. Leucht (1908) 129 Ky. 700, 130 Am. St. Rep. 486, 112 S. W. 845. The court said, inter alia: "The injustice of permitting the plaintiff and third persons to relate statements alleged to have been made to them by the husband, in the absence of the defendant, and that purported to have been made by the defendant to the husband, is apparent. The defendant had no opportunity to deny or explain them, as she was not present when they were made and could not have known anything about them, or whether they were, in fact, related by the husband to these parties. It seems to us that it would be a flagrant violation of the established rules of evidence to permit the plaintiff to make out a case against the defendant under circumstances like these. If evidence of this character was admissible, a defendant would be helpless, in fact, almost denied the right to make a defense. case could be made out upon evidence of this character, it would be an easy matter for designing or unscrupulous persons to present to a jury a state of facts that might induce them to return a verdict against the defendant."

If a

The rules of evidence governing the admission of declarations of conspirators have no application to a wife's action against another woman for alienation of her husband's affections, and a cause of action cannot be made out by the declarations of the husband. Buchanan v. Foster (1897) 23 App. Div. 542, 48 N. Y. Supp. 732. Whether any of the declarations involved related to acts or conduct of defendant does not clearly appear.

In Billings v. Albright (1901) 66 App. Div. 239, 73 N. Y. Supp. 22, the court held that while the declarations or statements of plaintiff's wife to or in the presence of plaintiff, indicating the state of her feelings toward him, were admissible in the absence of evidence of collusion, such declarations or statements made to third parties, and not in the presence of either of the parties to the action, and not made in explanation of or to characterize an act which was part of the res geste, were not competent. The declarations involved apparently were that defendant had been kind to her and had always used her well, and was very much of a gentleman, and that she could not see any good reason why she should not talk with him when they met. The court, however, does not appear to attach any weight to the fact that the declarations concerned defendant's acts and declarations, but apparently bases its decision on the fact that they were made to third parties.

b. Declarations concerning illicit relations.

The wife's confessions of adultery with defendant are hearsay, and not admissible against defendant, in an action by the husband for alienation of her affections or criminal conversation. Harper v. Harper (1918) C. C. A., 252 Fed. 39; Jameson v. Tully (1918) Cal. -, 173 Pac. 577; McVey v. Blair (1856) 7 Ind. 590; Sanborn v. Gale (1894) 162 Mass. 412, 26 L.R.A. 864, 38 N. E. 710; Kohlhoss v. Mobley (1905) 102 Md. 199, 62 Atl. 236, 5 Ann. Cas. 865; Hanor v. Housel (1908) 128 App. Div. 801, 113 Ν. Υ. Supp. 163. In England, the rule is the same with reference to claims for damages in divorce suits, the statutory substitute for the common-law action of criminal conversation. Robinson v. Robinson (1859) 1 Swabey & T. (Eng.) 262, 27 L. J. Prob. N. S. 91, 5 Jur. N. S. 392. In Hanor v. Housel (N. Y.) supra, the action was for alienation of affections, the adultery being alleged merely as one of the means of alienating the wife's affections. The court, after holding that an affidavit of the wife, and a conversation between her

and the plaintiff tending to show criminal intercourse, were inadmissible as confidential communications, added that there was no force in the claim that the evidence was a part of the res gestæ; that the mere fact that the wife maintained improper relations with defendant was not enough to support the action, but that, to maintain the action, there must be some active interference upon the part of the defendant, and the evidence must show that he wrongfully induced the wife to abandon the plaintiff; and that there was an obvious distinction between the case and one where the declarations of the wife were voluntary and spontaneous, and sprang out of the principal fact and explained it.

And a letter written by the wife to defendant of which plaintiff took possession before it had been sent to defendant, even though it contained express or tacit admissions of the alleged criminality, was incompetent. Underwood v. Linton (1876) 54 Ind. 468. The court said: "If the statements of a wife were competent evidence against one charged with criminal conversation with her, the husband and wife, by collusion, might make out a case against the most innocent, without even incurring the danger of punishment for perjury."

And the wife's admission that she was with defendant in a hotel room for two hours was not admissible, especially as she could not be a witness to contradict the declaration. Dalton v. Dregge (1894) 99 Mich. 250, 58 Ν. W. 57. But it was further held in this case that letters written by the wife to defendant were admissible to show the alienation of her affections and the intimacy between her and defendant, where there was evidence that they were received by defendant, and acted upon. They were not hearsay statements, but her own deliberate words, written to and received by defendant, under circumstances refuting any presumption of collusion, and were no less admissible than evidence of conversations between her and defendant, showing improper relations.

And where the husband discovered

the wife leaving defendant's house and told her that he had caught her redhanded, her reply that as long as she was caught she might as well own up to it was incompetent. The wife was not a party to the suit, and could not make admissions that would bind defendant. If the defendant was with her in the house, they were nevertheless separated at the time her statement was made, and it was no part of the transaction that took place in the house, and was, therefore, nothing more than an admission that she had been in the house, with no explanation of her purpose in being there. Phelps v. Bergers (1913) 92 Neb. 851, 139 N. W. 632.

But in McGinnis v. McGlothlan (1915) 192 Mo. App. 141, 180 S. W. 405, where the husband testified to an admission by his wife that her relations with defendant were improper, and that she loved him, the court, after saying that, in order to show the state of mind of the person whose affections were said to have been alienated, private communications between the husband and wife might be shown, provided they did not include statements of what defendant did or said, further said that the husband did not testify to anything the wife told him that defendant had said or done, showing his guilty relations with her; and that, therefore, there was no error on this branch of the case.

c. Declarations concerning acts or attitude of declarant's relatives or friends charged with alienating declarant's affections.

The wife cannot testify in an action by her against her husband's parents, to statements of her husband concerning his parents' opposition to the marriage. Huling v. Huling (1889) 32 III. App. 519. Nor, in an action by the husband, may he testify to declara

tions of the wife that she would have been living with her husband had it not been for her folks; that but for them she would go back to him; and that if she had not gone home with them when they came after her, they would have killed her. Edgell v. Francis (1887) 66 Mich. 303, 33 N. W. 501. So, in an action by the wife, she

cannot testify to declarations of the husband, with reference to the hostile attitude of his parents, such as a declaration, prior to the marriage, that he could not sit in church with plaintiff because his mother would not allow him to, and his statement, in explanation of his desire to keep the marriage secret, that if his father knew of it he would separate them, and send him away. Cochran v. Cochran (1909) 196 N. Y. 86, 24 L.R.A. (N.S.) 160, 89 N. E. 470, 17 Ann. Cas. 782, reversing (1908) 127 App. Div. 319, 111 N. Y. Supp. 588. And in an action by the wife, she cannot testify to declarations of the husband, in the absence of defendant, that defendant was trying to bring about a separation between him and his wife (Leucht v. Leucht (1908) 129 Ky. 700, 130 Am. St. Rep. 486, 112 S. W. 845; Westlake v. Westlake (1878) 34 Ohio St. 621, 32 Am. Rep. 397); or to declarations of the husband concerning what his mother had said to him, in the absence of both defendants (Brison v. McKellop (1914) 41 Okla. 374, 138 Pac. 154). In Cochran v. Cochran (N. Y.) supra, the court said: "While, of course, plaintiff was required to prove the unlawful conduct of defendants, and while such unlawful conduct might be evidenced by such acts as were outlined in the evidence referred to, it was incumbent upon her to prove the same by competent testimony, and it was not proper to give evidence of her husband's declarations on the subject. Such evidence offended against the general rules of evidence, and has been specifically condemned in actions similar to this one." Judge E. Т. Bartlett dissented, saying that the facts in question were part of the res gestæ, and that, in showing the attitude of the husband's father, it was entirely competent to prove when that position developed, and to follow it down to its final results.

In Edgell v. Francis (Mich.) supra, the court, though holding as stated above, further held that statements of the wife concerning the reason why she stayed with her parents, and her feelings and wishes, and her warning to plaintiff against going to her fa