This is an original proceeding by certiorari against respondents herein, as judges of the St. Louis Court of Appeals, to determine whether that court followed the last previous ruling of this court in announcing the law in a case in which relatrix herein is plaintiff
and appellant and Charles P. Ham and Sarah A. Ham, his wife, are defendants and respondents. The style of the case is Hayward v. Ham et al., and the opinion of the St. Louis Court of Appeals is reported in 29 S.W. (2d) 243, to which reference is made. Relatrix states that the opinion of the Court of Appeals is in conflict with the opinion of this court in the case of Fuller v. Robinson, 230 Mo. 22, 130 S.W. 343, which is pleaded in the petition for a writ of certiorari as the last previous ruling of this court on a question of law in Hayward v. Ham, supra, and as such controlling authority therein.
The opinion of the Court of Appeals discloses that relatrix, Iva Ethelyn Hayward, sued Charles P. Ham and wife, the parents of her husband, for damages for the alienation of the husband's affections. She recovered a verdict for $7000, which the trial court set aside and granted a new trial upon motion of the defendants. The order granting the new trial gave as a reason therefor that it was "upon the ground alone that the court admitted evidence offered by the plaintiff that was incompetent and prejudicial to defendants over the objections and exceptions of defendants' counsel made at the time." The Court of Appeals ruled that testimony concerning the "mower incident" was admissible. The opinion then states the proposition which these certiorari proceedings bring here:
"The second matter that the court seems to have had in mind in granting the motion for a new trial was the testimony of the plaintiff that her husband assigned, as his reason for leaving her, that `my daddy will disinherit me if I don't go.'"
The Court of Appeals in its opinion then quotes at length from the testimony of relatrix. She testified that on a given day about two weeks before their separation, her husband returned to their home, took a seat and drew her to his lap. He wept and told her he had been talking to his parents. The opinion then proceeds:
"Q. Now tell what happened, what you said to your husband and what he said to you with respect to the state of his feelings toward you, if he made any statement with respect to that, one way or the other, and about staying with you or not staying with you, if such made, avoiding about any statement his mother or father made about his leaving or not leaving, if you can tell us what happened in a way? A. He told me, `that he had to leave me.'"
The opinion next shows that out of the presence of the jury, relatrix made an offer of proof that, in this conversation, her husband said that his daddy told him that he had to leave her and that, if he did not, his daddy would disinherit him. Counsel for defendants objected to this statement for the reason that no statement by the husband to relatrix could bind the parents of the husband because made out of their presence and hearing, and is hearsay. The court stated its intention to permit relatrix to testify to everything said by her husband to her except statements which either of his parents, the defendant, had made to him. The opinion then quotes the following further testimony given by relatrix in the presence of the jury:
"Q. Miss Hayward, on this occasion you have been telling us about, did your husband tell you this, not say, because the court ruled out everything your husband may have told you his mother or father may have said, that we can't tell in testimony here, did your husband say anything about going away on this occasion when he pulled you down on his lap and he cried? A. Yes, sir, he says, `I have got to go, my daddy —'
"Q. Don't tell us that. A. I was not going to repeat what his daddy said, he said `my daddy will disinherit me if I don't go.'
"Defendants' counsel objects, move be stricken out, statement of conclusion as to what defendant, Charles Ham, is alleged to have said.
"THE COURT: The statement of the witness as given in this answer does not include any purported statement made by either defendant to the husband of the witness and by the husband reported to the witness, and necessarily reflects the mental attitude of the husband himself as the witness gathered it. Objection overruled.
"To which ruling of the court defendants then and there at the time excepted and still excepts.
"Q. Did your husband and you continue to talk about the matter of his going? A. Yes sir.
"Q. How long did you discuss that matter? A. Oh, about an hour I suppose.
"THE COURT: Just a minute, in ruling on that last objection, the court ruled that the answer given by the witness and objected to, is competent as bearing upon the question of the state of affection of the husband towards the wife at that time.
"To which ruling of the court defendants then and there at the time excepted and still excepts." (Italics ours.)
Upon the admissibility of this evidence the St. Louis Court of Appeals in its opinion reasoned and ruled as follows:
"The petition alleged that defendants told their son that if he did not leave plaintiff they would disinherit him, and the answer by the general denial put such allegation in issue, yet such allegation of the petition could not be completely proven by evidence that at most was an opinion or conclusion of the husband of the witness (Martin v. Traveler's Ins. Co. (Mo. App.), 247 S.W. 1024, loc. cit. 1030; Baker v. Keet-Rountree, 318 Mo. loc. cit. 987, 2 S.W. (2d) 733, 3 S.W. (2d) 1003), or, if put in the words of the allegation of the petition
would be mere hearsay. [St. Louis Union Trust v. Little, 320 Mo. 1058, 10 S.W. (2d) 47, loc. cit. 50; Johnson v. Martindale (Mo. App.), 288 S.W. 970, loc. cit. 971; Clay v. Walker (Mo. App.), 6 S.W. (2d) 961, loc. cit. 963.] If a reason had been assigned in the testimony of either of the defendants why their son left the plaintiff, she would, in rebuttal, have been entitled to show a state of facts to overcome such testimony. But that is not the case here. The testimony here in question went in on plaintiff's case in chief, over objection, and no reason whatever was assigned by either of the defendants why plaintiff's husband left her.
"(3) It is true that at the instance of defendants the court granted their Instruction D-10 to the effect that conversations between plaintiff and her husband, outside the presence of the defendants, were admitted in evidence solely for the purpose of showing the state of mind, concerning the affections charged to have been alienated, and that the jury should not consider any such statements, if they were made, to determine or affect the decision of the jury on the question of whether defendants alienated the affections of plaintiff's husband, and that the jury should not consider any such statements as evidence of any facts or statements of the defendants or either of them; but the plaintiff had already testified that her husband came in, sat down by the stove, and pulled her down on his lap, caressed her, cried, stated he married her because he loved her, and that he still loved her. These were all statements regarding the state of affections between the parties, but we cannot see how his statement that he would be disinherited, if he did not go, tends in any wise to show affection. As we view that statement, it could tend solely to impress one with the idea that some communication must have been made by his parents to cause him to fear such result. We regard the admission of that evidence as extremely harmful because of the effect it must have had upon the minds of the jurors, especially in view of the allegation in the petition above referred to, which was read to the jury.
"(4, 5). The trial court is vested with a wide discretion in the granting of a new trial, and that discretion is not to be disturbed by an appellate court unless there has been a gross abuse thereof. [Honea v. Railroad, 245 Mo. l.c. 649, 151 S.W. 119; McCarty v. St. Louis Transit Co., 192 Mo. l.c. 401, 91 S.W. 132; Rodan v. St. Louis Transit Co., 207 Mo. l.c. 406, 105 S.W. 1061; Delaplain v. Kansas City, 109 Mo. App. 112, 83 S.W. 71.] In view of what we have said, we think the trial court wisely exercised its discretion in the granting of a new trial in this case."
Relatrix filed in the Court of Appeals a motion for a rehearing in which she contended that the testimony quoted above was competent to show the state of mind concerning the affections of her husband toward her at the time, and that the testimony was not offered, given or received as a statement made by the defendants. The motion for a rehearing also stated that the decision of the Court of Appeals was in conflict with Fuller v. Robinson, supra, which was cited as a controlling decision of the Supreme Court. The Court of Appeals overruled the motion for a rehearing, relatrix filed in this court her petition for a writ of certiorari and the writ was issued.
[1, 2] I. We shall rule first two motions. Respondents have moved to dismiss the proceeding upon the grounds that relator's abstract of the record did not bring up the record of the case sought to be quashed, it did not present the assailed opinion and did not properly abstract the return. The printed abstract sets out at large relator's petition for certiorari. And this petition complies with our Rule 34 relating to certiorari to Courts of Appeals,...
