187 N.W. 727 | S.D. | 1922
Plaintiff recovered judgment against defendant
Appellant claims he is entitled to a new trial because of the admission of incompetent evidence at the trial. The evidence complained of was admitted over the objection that it was incompetent, hearsay, self-serving, and not binding on the appellant. The court ruled that the respondent might testify to any remonstrance or objection he made to his wife going with defendant, and what she said in reply. Under this ruling respondent testified that: “I told her Bairibri'dge [defendant] was a bad man. * * * I told her that I knew something about Bainbridge; that I did not think he was a proper person to associate with.” To which plaintiff’s wife replied: “I know more about that than you do.” She said he had some trouble with a lady that lived on a corner of his place where he lived. She said she thought Bain-bridge was all right. She said a good many things.
Respondent further testified that he told his wife that he did not want Bainbridge coming to his (respondent’s) place. “She said there was a good many things said about Bainbridge, but they were talking about all people. I told her he (Bainbridge) was a man she ought not to associate with at all. I told her a number of times that I was sorry, and I am sorry now to think I did. I told her that I objected to her being at Bainbridge’s. I wanted her to stay at her sister’s. I said a good many things that I cannot remember. I told her right out that he was nothing but a brute, and had told the defendant this to his face.” Respondent further testified that his wife said she thought more of Bainbridge than she did of plaintiff — said this two or three dozen times; that he remonstrated with his wife when he came home and found Mr. Bainbridge there. There was more of a similar nature, but this is enough to show the character of the testimony that was received over appellant’s objection.
This testimony was offered and received for the purpose of showing the state, of mind of plaintiff’s wife and is competent for that purpose. Jones, ev. § 350 (2d Ed.) ; Ash v. Prunier, 105 Fed. 722, 44 C. C. A. 675; Rudd v. Rounds, 64 Vt. 432, 25 Atl. 483; Glass v. Benentt, 89 Tenn. 478, 14 S. W. 1085; Roesner v. Darrah, 65 Kan. 599, 70 Pac. 597; Wigmore, Ev. § 1730; McKenzie v. Lautenschlager et al., 113 Mich. 171, 71 N. W. 489; Horner v. Yance, 93 Wis. 352, 67 N. W. 720; Smith v. Smith, 42 S. D. 205, 173 N. W. 843. Such words, -however, are competent only as to the loss of affection (Rose v. Mitchell, 21 R. I. 270, 43 Atl. 67), and it is the duty of the trial court, when such, evidence is received, to instruct the jury that such evidence can he ■considered only for the purpose of showing the mental state of the party whose affections are claimed to have been alienated, and not for the purpose of showing that the defendant is responsible for such alienation. Rose v. Mitchell, supra.
“Did it come to your knowledge that people were talking •about your wife and Bainbridge?” “Were these meetings in the store so frequent that it attracted the attention of the people in the store?” “Was there ever anything said in the store about these meetings there, by others?”
The trial court sustained objections to- all these questions. None of these questions were competent for any purpose and they should not have been asked, but there -is nothing to indicate that •counsel was intentionally asking improper questions, or that such questions were asked for the purpose -of prejudicing the jury, and ■we are unable -to see how they could have prejudiced the jury.
The judgment and order appealed from are affirmed.