181 Iowa 1005 | Iowa | 1917
The burden of proof, then, was on plaintiff to show not only that defendant, by his counsel or conduct, persuaded William to leave his wife, but that in so doing he was actuated by malicious motives. Appellant contends that the evidence was insufficient to carry these issues to •the jury.
Upon a separate examination of the record, the member's of the court are unable to agree whether there was any evidence from which the inference might properly be drawn ■that defendant had persuaded his son to abandon plaintiff, or that, if he so did, he was actuated by malice therein, and, as there must be a reversal on other grounds, we have concluded not to review the evidence or pass at this time upon its sufficiency to carry these issues to the jury.
“Will told me that he had asked for money to pay*1010 the nurse that had been waiting upon me, and he said his father furnished the money very grudgingly.”
Motion to strike this out was overruled. The objection to the question should have been sustained, and, as the answer had no tendency either to show the affection or want thereof for plaintiff, or improper conduct on the part of the defendant, the same ruling should have been made on the motion. The defendant was under no obligation to pay the bill, and, if he did so reluctantly, this was no proof of hostility toward plaintiff, or of any design to interfere with her marital relations.
“Well, he said the story that his mother had heard, there was absolutely no truth in it, and he bet his' mothef had never heard such a -story; that it had been hashed up at home to make trouble between us.”
A motion to strike was overruled. Manifestly, the ruling was erroneous. Defendant was not responsible for what his wife did, nor .what might have been hashed up at home, unless he participated therein. See Heisler v. Heisler, supra.
“Q. Tell the jury what Will said to you in that connection.”
“After they went away, Will seemed to feel very bad, and said that his folks wanted him to leave me right then and there, and go with his cousin, Rufus, that night, on one of the Minnesota farms that his father owned, and said that he felt very bad; that his folks were trying to make trouble between ns.”
The reference to his folks evidently was directed to the three young men who visited him, and the answer but emphasizes the prejudicial character of the ruling.
“You may go on and state what was said there by Will and by Mr. Bailey and by Mrs. Bailey and you there in the presence of each other, as to how Will felt and what he intended to do, and so on.”
An objection might well have been sustained to this question because of .calling for evidence that would be improper, but the witness answered pertinently to the issues, and therefore the ruling was not prejudicial.
“Will seemed to feel very bad, and when we got there, seemed to be nervous and excited, and he told my brother-in-law and my sister that his father was insisting on him leaving, and that his folks all had it in for me, and that., if he could have a team and could save the household furniture, and take me and the children and move off the place and let his father have the rest, and he also said that he believed he had the meanest father in the world; that his father was doing all he could to separate him and I.”
“He told Mr. Hatley that his folks were making trouble between them and trying their best to separate us, and he said his father had a mortgage on everything that he had, and he wouldn’t give him any money, and he said he thought lots of his family and he liked to treat them right, but he said no man could treat his family right, he said, and get along without any money at all. He also asked Mr. Hatley his advice as to what he shouid do, and Mr. Hatley agreed to write a letter to father Moir, telling him to desist from separating us, and Mr. Hatley agreed to and I think he did write a letter to father Moir.”
The question was entirely too general, and the answer included much that was not admissible. That defendant held a mortgage on everything was true, but .he was under no obligation to give William money save as he undertook so to do, and it was not a matter of his concern that William might not have sufficient money to care for plaintiff. What Hatley may have advised was entirely hearsay, as was his promise to write a letter.
“Will you state to the jury what that conversation was and how it seemed to af*1013 feet him; that is, as to whether he felt bad or not?”
The question was objected to as incompetent, irrelevant and immaterial, and as hearsay and as not binding on defendant. The objection was overruled, and the witness answered:
“Well, he said his mother had been down the night before, and they had some trouble, and she called May all kinds of names. He said he didn’t say anything, but just let them fight it out, May and his mother; and then he said his mother wanted him to leave' May, and he said he wouldn’t do that; he said he would sooner quit the farm than leave May. ‘Well,’ he says, ‘we always get along all right, but the old folks didn’t seem to like her.’ ”
A motion to strike the answer was overruled, and, over another objection, the witness was permitted to say that William had “felt bad about that the whole day when he helped us thresh that day. That is what he told me.” These rulings were erroneous for that conspiracy between defendant and his wife was neither charged nor proven, and defendant was not responsible for what his wife may have said or done. Because of the errors pointed out, the judgment is — Reversed.