Stilwell v. Stilwell

• Decision Date: 15 May 1919
• Docket Number: No. 31475.,31475.
• Citation: 172 N.W. 177,186 Iowa 177
• Parties: STILWELL v. STILWELL ET UX.
• Court: Iowa Supreme Court

186 Iowa 177

172 N.W. 177

STILWELL

v.STILWELL ET UX.

No. 31475.

Supreme Court of Iowa.

May 15, 1919.

Appeal from District Court, Marion County; Lorin N. Hays, Judge.

The plaintiff is married to the son of the defendants. She charges that by divers means the defendants alienated the affections of plaintiff's husband from her and caused him to separate from her and to refuse to furnish her a home. From verdict and judgment in her favor, the defendants appeal. Affirmed.L. D. Teter, of Knoxville, Iowa, for appellants.

W. G. Vander Ploeg, of Knoxville, Iowa, for appellee.

SALINGER, J.

[1] I. Complaint is made of the reception and exclusion of testimony. It is settled in this court that appellate review is limited on what is presented by the “Brief Points.” But as to some of the matters complained of, it is clear that, with or without reference to the brief points, the complaint is not well made:

[2] The father of the plaintiff testified:

“My daughter told me that she would be willing to live anywhere, even in a tent, if he would get one away from them.”

No objection was made to the reception of this testimony, nor was there motion to strike the same out.

[3][4] I. W. Stilwell, a witness for the defendants, was asked to state whether or not the witness ever talked with the husband of the plaintiff, “with reference to his conduct towards his wife, and in reference to her; what sort of a girl she was, and that she was a nice and pleasant little lady.” On objection being made that this was incompetent, immaterial, and hearsay unless shown to have been made in the presence of the plaintiff, the court inquired what counsel claimed for this, and was answered the claim was the question was a proper one, because “the defendants have the right to show anything they ever did towards inducing their son to live with the plaintiff and treat the plaintiff well.” Thereupon, the court sustained the objection made, with a statement that, if the witness were testifying to what the demeanor of the husband was toward his wife, it would be competent, but that what some third person said, or what “he” might have said to some third person, is not competent. It is not necessary to determine whether this be or be not the best reason that can be advanced for refusing to let this witness answer this question. We are content with sustaining the ruling because, clearly, the proposed testimony was not admissible for the purpose for which counsel declared it was being offered. How could the fact that the witness had talked with the husband with reference to the conduct of the husband towards the plaintiff, and talked with the husband with reference to the wife, and talked with him as to what sort of a girl she was, and in the talk said that she was a nice and pleasant little lady, in any way tend to show that the defendants did something towards inducing their son to live with the plaintiff and treat her well. There is no evidence that the defendants induced the witness to speak to the husband. To reverse for excluding this testimony, we would be compelled to hold that if a third person talked with the husband as to his conduct toward his wife and with reference to the wife and talked with the husband as to what sort of girl the wife was, and said that she was a nice and pleasant little lady, this would be evidence from which a jury could find that the defendants had made an effort to induce their son to live with and treat his wife well. Manifestly, such testimony does not in any degree tend to prove that the defendants did anything towards promoting the continuance of the marital relation or to bring about proper treatment of the plaintiff. To say the least, the objection that the proposed testimony was immaterial is well taken.

[5] 1a. We now turn to the only brief point dealing with ruling on testimony. It is as follows:

“Defendants may show what they did to induce their son to live with plaintiff. What defendants said to accomplish the same purpose is a part of the res gestæ, and is equally admissible. The fact that the statements were not made in the presence of the plaintiff is wholly immaterial. Such testimony is substantive of verbal acts tending to show that defendants were trying to induce the son to live with plaintiff.”

It is manifest this makes no complaint of the “reception” of testimony and is an assertion that there was error in rejecting testimony for reasons stated. This disposes of the one assignment that goes to the reception of testimony, to wit, allowing the father of the plaintiff to testify, in answer to a question of why plaintiff left the home of defendants, that she did so “on account of the treatment she was getting.” It may be assumed that the objections lodged to this testimony were well taken. But the appellants may waive error in that regard. They did so by limiting the brief points to the rejection of testimony.

[6] 1b. We have already disposed of the refusal to let the witness I. W. Stilwell detail what talk he had had with the husband of plaintiff. It is not amiss to add that this refusal may not be reviewed because what was ruled out is not in the class covered by the brief point.

[7] 1c. The plaintiff testified that--

The morning after the baby was born, defendant Mrs. Sarah Stilwell “said she had heard, she said she told Deny something. And I said, ‘What did he say?’ And she said, ‘Deny said it was a damned lie.’ And I said, ‘What did you tell him?’ And she said, ‘I told him what a neighbor woman told me that you had been intimate with another man and Deny said it was a damned lie.’ ”

On cross-examination Mrs. Sarah Stilwell said:

“I told Beryl the story that was going around that she had been intimate with another man.”

On redirect, she was asked to explain why she spoke to plaintiff “concerning these rumors that were being circulated.” To this, objection was made that it was incompetent. It was sustained, with the statement that the judge did not believe it was competent, “without she explained it to Beryl.” This once again may not be the best assignable reason for the ruling. But the ruling was right. The brief point limits review to the claim that there were exclusions of matters which tended to show defendants did or tried to do something which was calculated to induce their son to live with plaintiff. If the matter excluded had no tendency to show anything of this kind, the exclusion was manifestly right. It will be noticed the question did not ask for an explanation of why the mother had communicated these rumors to her son. The exact complaint is that she was not permitted to explain why she communicated these rumors to the son's wife. It does not even appear that, at the time when the mother spoke to his wife regarding these rumors, the son knew the mother intended thus to speak. What possible explanation as to why the mother told plaintiff that rumor accused her of unchastity would tend to show that the mother was making an effort with either husband or wife to induce either or both to continue the marital relation and to live in mutual affection. As to how any possible explanation of why this rumor was told to plaintiff could show a desire on part of the teller that the couple should not be estranged, one must enter the realm of imaginative speculation--the realm of pure fancy. If there ever was a case wherein to apply the rule that no exclusion will be reviewed without some indication of why the testimony proposed was proper and relevant, this is such a case. We have read Bailey v. Bailey, 94 Iowa, at 603, 63 N. W. 341, and Price v. Price, 91 Iowa, at 693, 60 N. W. 202, 29 L. R. A. 150, 51 Am. St. Rep. 360, and Miller v. Miller, 154 Iowa, at 350, 134 N. W. 1058, with great care. In neither of them is anything ruled which conflicts with our disposition of exclusions thus far dealt with.

[8] 1d. Defendant Sarah Stilwell was asked whether, at the time the parents of plaintiff took plaintiff and her baby away, she (the witness) was willing for plaintiff to remain in witness' home, and answered, “Yes.” This answer was stricken out for being incompetent. This ruling raises the most serious question that arises on the taking of testimony. In Miller v. Miller, 154 Iowa, 344, 134 N. W. 1058, we held it was error to exclude testimony that after husband and wife had taken a trip the parents of the husband were willing to allow them to occupy the house on the home farm which they had occupied before taking the trip. In Pooley v. Dutton, 165 Iowa, 745, 147 N. W. 154, we declare that whenever it becomes material to show the motive, intent, and mental attitude of a person, such person may testify directly thereto, though the testimony is to some degree in the nature of a conclusion. We therefore held that in an alienation suit the wife might testify directly to her mental and emotional attitude towards her husband, and the causes producing the same. Both on reason and on authority this testimony given by Mrs. Stilwell should not have been stricken out. But the question remains whether its exclusion was prejudicial.

[9] It will be noted the answer did not go beyond disclosing what was the mental attitude of the witness toward the plaintiff at the time spoken to. If what was stricken out is in effect not more than a repetition of what was not stricken out, then the striking out worked no prejudice. Is not that the situation? The witness was allowed to say what tends to show, not only that she was willing to have plaintiff remain in the home of the witness at the time when plaintiff and her baby were taken away, but that she was thus willing at all times. She was permitted to testify that, from the time of the marriage until the 9th of February, the couple were at the home of the witness the larger portion of the time; that about the 9th of February plaintiff came to the house of the witness and remained all the time until she and her baby were taken away; that witness had always spoken...