Hillers v. Taylor

Briscoe, J., delivered the opinion of the Court. When this case was before us, on a former appeal, from the Circuit Court for Prince George’s County, reported in 108 Md. 148 , a judgment of that Court in favor of the defendant was reversed for error in the rulings of the Court below, on the evidence. presented at the trial and the case was remanded for a new trial: Subsequently, on the 8th day of October, 1908, the case was removed to the Circuit Court for Anne Arundel County for tidal, and from a judgment in that Court in favor of the plaintiff the defendant has appealed. The questions for our consideration on this appeal are presented by two bills of exceptions, one relating to the ruling of the Court upon a motion by the defendant, at the conclusion of the testimony, to strike out certain testimony of the plaintiff, which had been admitted subject to exception, and, second, to the action of the Court in overruling the defendant’s special exception to the granting of the plaintiff’s second prayer, which submitted the proper rule of law for the guidance of the jury, in assessing the damages if they found a verdict for the plaintiff. ¹⁶⁹ The suit was brought by the plaintiff against the defendant. to recover damages for alienating the affections of the appellee’s husband and persuading him to abandon her. The declaration contains two counts, the first charging the defendant with criminal conversation with the appellant’s husband, resulting in the alienation of his affections, and the second charging her with having caused the alienation and abandonment by wrongful and wicked persuasion and the practice of alluring arts upon him, well knowing him to be the husband of the appellee.

The record shows that in the course of the trial the plaintiff offered evidence tending to prove the facts set out in the second count of the declaration, and the defendant offered no testimony, but at the conclusion of the plaintiff’s testimony, submitted the following motion: “The defendant moves the Court to strike from the record all the testimony of the plaintiff in this case with reference to conversations with her husband upon the ground that the conversations have not been in any way shown to have been caused or induced by the acts of the defendant.” The testimony here referred to had been admitted subject to exception, and the ruling of the Court, in overruling this motion forms the basis of the first exception. T\ e think, upon the state of the record now before us, the Court was entirely right in overruling the motion. The testimony was competent, under the well-defined exception to the rule against hearsay evidence, in suits like the present one to show the state of feelings "existing between the husband and the wife, on the second count of the declaration. In the former appeal, we held, that evidence of statements made to the plaintiff by her husband relating to the wishes of the defendant or of declarations made by the defendant on the facts of that case, was inadmissible.

Such evidence is either hearsay or a mere expression of opinion made out of the presence of the defendant. Judge ScuurcKEE, in delivering the opinion of the Court, said, ¹⁷⁰ “the subject has received careful consideration in sections 1730 and 1768 of Vol. 3 of Wigmore on Evidence^ and more recently in section 1730 of the supplement to that work, where the rule is stated to be from an examination of the authorities, that in alienation suits the utterance of the alienated spouse are admissible to show the result on his or her state of mind of the efforts and influence of the defendant which have otherwise' been proven. In that respect the defendant’s acts and utterances as recited by the spouse are not hearsay and are 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.” Voltuns 3, section 1648, of Elliott on Evidence, states the rule to be that “declarations or letters tending to show the feeling