In this аction the plaintiff sought to recover damages from the defendant, his mother-in-law, on the ground thаt she had alienated the affections of his wife. Little purpose would be served by stating the facts found by the trial court, or considering the assignments of error seeking corrections in the finding except in one particular we shall discuss.
While the plaintiff was testifying in his own behalf he was asked certаin questions as to statements made to him by his wife not in the presence of the defendant.
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When the first of these questions was asked, the defendant objected and the matter was discussed at length. The triаl court stated that as it was almost at the end of the term it would be unfortunate, with the witnesses present, to have evidence summarily-ruled out on debatable grounds, and that counsel could look up the authorities and later be heard on a motion to strike out; and it added: “It will produce no lasting effect on my mind, because I feel that I can readily dismiss it, if it is stricken from the record.” It admitted “this particular question.” No exception was takén to this ruling, and the finding does not show that the question was answered, so that in itself the admission of this question presents nothing' for our consideration. Referencе is made to it only because of its possible bearing upon later rulings of the court. Other similar questiоns were thereafter asked, but no motion to strike out any evidence of this nature was made. . To the admission of a number of the later questions, no exception appears to have been taken, and in other instances the finding does not show that they were answered, and these, too, we disregard. Others of the questions-were admissible; in a suit for alienation of affections, the stаte of mind of a spouse whose affections are alleged to have been alienated may be material to show the loss of affection which is the gist of the action and to show1 the effect, in producing that loss, of the claimed words or acts of the defendant; and statements made out of court by him or her relevant to such an inquiry are admissible on that ground, not to prove the truth of any facts included in them.
Moir
v.
Moir,
The last paragraphs of the finding contara a recital of certain facts based upon the observation by the trial court of the defendant and the plaintiff’s wife in the courtroom during the trial.- It found-that they paid no attention to the little child of the plaintiff and his wife whеn he. attempted to play with them, but spurned him and seemed to take pleasure in'repulsing him; that thе wife continually sat beside the defend
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ant, and it was very evident that she was under the domination of the defendant; and that it was fairly apparent that if left to themselves the plaintiff and his wife would get аlong together. In effect the trial court, as a basis for these findings, made of himself a witness, and in making thеm availed himself of his personal knowledge; he became an unsworn witness to material facts without the defendant having any opportunity to cross-examine, to offer countervailing evidеnce or to know upon what evidence the decision would be made. In
State
v.
McLaughlin,
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.