
    Ellen Pollock, Resp’t, v. Alexander Pollock, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 4, 1894.)
    
    1. Evidence—Hearsay—Res gestae.
    In an action by a wife for loss of her husband’s consortium, statements made to her by her husband, in the absence of the defendant, are inadmissible except as part óf the res gestae and as tending to show the existing relations between husband and wife at the time.
    2. Husband and wife—Consortium.
    In an action by a wife for loss of her husband’s consortium against his father, stronger proof is required for a recovery than against a stranger.
    3. Same—Motives.
    In such action, the motives of a parent are presumed to be good until the contrary is shown.
    Appeal from a judgment for plaintiff which was rendered on a verdict in her favor. Appeals also from two orders, each of which denied a motion by defendant for a new trial, the first motion having been made on the minutes at trial term, and the other on a case and exceptions at special term. Action by the wife to recover damages for the loss of her husband’s consortium, the defendant being the husband’s father and charged with having wilfully, wrongfully, and maliciously ,by threats, persuasions, and offers of money, induced and procured the husband to abandon his wife.
    
      Delaney Nicoll, for app’lt; Edward C. James, for resp’t.
   Bis OH OFF, J.

Repeated scrutiny of the testimony adduced on the trial is convincing that the facts afforded no justification for the recovery and that the verdict was not the result of temperate and dispassionate deliberation on the part of the jury. It is, therefore, the prerogative, as well as the duty, of the court at general term, on appeal from an order denying a motion for a new trial, lest justice should be preverted, to set the verdict aside and to order a new trial. Kummer v. Christopher A Tenth St R. R. Co., 2 Misc. 298 ; 50 St. Rep. 332 ; Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25, 30 ; Hynes v. McDermott, 7 Abb. N. 0. 98 ; Engel v. Schoclherr, 12 Daly, 417; Schwinger v. Raymond, 105 N. Y„ 648 ; 7 St. Rep. 544. The plaintiff was permitted, under objection and exception by defendant's counsel, to testify to stasements made to her by her husband in the absence of the defendant which in effect'attributed the husband’s abandonment of his wife to the persuasions and contrivances of the defendant, but the learned trial judge mindful of the rule which interdicts sucli statements as hearsay, limited their admission as part of the res gestae and as tending to show the existing relation between husband and wife at the time. Willis v. Bernard, 8 Bing. 376 ; Gilchrist v. Bale, 8 Watts, 355; Palmer v. Ctoolc, 7 Gray, 418; Holtz v. Dick, 42 Ohio St. 23 ; Remsen v. Hay, 14 Wk. Dig. 443 ; Baker v. Baker, 16 Abb N. C. 302. The subsequent proceedings on the trial, however, demonstrate that this limitation was disregarded and that the statements of the husband to the plaintiff were given the effect of evidence against the defendant which tended to establish the subject matter of the husband’s statements to his wife as the facts of which the defendant’s liability was predicable. How utterly destitute the evidence was of every personal knowledge by the plaintiff of the defendant’s alleged interference to wreck her marital happiness is best shown by her own testimony given upon cross-examination when called in rebuttal: “Were you .ever present when Mr. Pollock threatened your husband ? A. I was not. Q. Were you ever present when Mr. Alexander Pollock offered to bribe your husband? A. My husband was not present when I saw Alexander Pollock but once. Q. I ask you if you were ever present when Mr. Alexander Pollock offered a bribe to your husband ? A. No, sir.” Disregarding a@ incompetent to establish the defendant’s interference with the plaintiff’s marital felicity all testimony which was not given upon personal knowledge of the alleged facts narrated, the record at most shows that the defendant was displeased with his son’s marriage with the plaintiff; that he did not approve it; that notwithstanding he gave his son employment in his business; that he supplied him with money and harboured and sheltered him at his home; that he stated it to be his wish that his son might be extricated from a marital alliance which paternal solicitude, perhaps unwisely, prompted him to regard as foreboding future infelicity for his son ; that he dedined to receive the plaintiff as a member of his family and at his .home; that on several occasions when the plaintiff invaded hip home and place of business he caused her to be ejected, and that he further declined'to assist her in the restoration of her child which her husband had caused to be taken from her. But these facts did not'justify the recovery. It yet remains to be judicially sanctioned that parental solicitude for a child’s felicity is a reprehensible quality, and that the .natural grief and displeasure of the parent because of the child’s1 marital alliance, which to the former seems apprehensive of the latter’s future discontent, must give way to rejoicing, lest the parent should be exposed to liability in damages for having by his disapproval deprived his child’s spouse from the enjdyment of his or her anticipated advantages of the marriage ; or that because of a marriage of the child, which, the parent conceives to be ill-fated, the latter must, to avoid a similar liability, cast the former out, declin.e any longer to receive his child in his family, and refuse to succor it by means of employment, shelter and tender consideration. Neither docs the parental roof, by the child’s marriage, become an open asylum or place of refuge, for any .but those to whom the parent extends the privilege of enjoying it as such. The marriage of the child imposes no obligation upon the parent to receive within the bosom of his own family, or at his place of business, any person other than one present at the parent’s invitation or with his consent. The defendant was under no legal duty towards the plaintiff to assist her in the restoration of her child. The evidence fails to show that he was instrumental in removing the child; but, even if that be otherwise, it must be borne in mind that this action was to recover for the loss of the consortium of the husband.

Increased intensity of the proof is required in actions of this character when recovery is sought against a parent. The motives of a parent in harboring, sheltering, and otherwise extending aid and assistance to a child are presumed to be good until the contrary is shown. Such is the current of opinion of text writers and such is ruled in adjudged and,reported cases. “The motives * * * of a parent are presumed good.” 9 Am. & Eng. Ency. of Law, 884. “ Not only a parent or child, but a stranger, may give shelter to a wife who has left her husband, but the motives of such harborer, are important, and must not be to separate husband and wife, those of a parent are presumed good.” Stewart’s Husband and Wife, § 78. “Parents and near relatives stand on a different footing from strangers.” Schouler’s Husband and Wife, § 64. “ If, however, the interference is by the parents of the wife, on an assumption that the wife is ill-treated to an extent that justifies her in withdrawing from her husband’s society and control, it may reasonably bo presumed that they have acted with commendable motives, and a clear case of want of justification may be justly required to be shown before they should be held responsible. ” Cooley on Torts, 224. “ A father’s house is always open to his children; and whether they be married or unmarried, it is still to them a refuge from evil and a consolation in distress. Natural affection establishes and consecrates this asylum. According to Lord Coke, ‘it is nature’s profession to assist, maintain and console the child.’ ” Bad or unworthy motives cannot be presumed. They ought to be positively shown, or necessarily deduced from the facts and circumstances detailed.” Kent, Ch. J., in Hutcheson v. Peck, 5 Johns. 196. “ Much will be forgiven the parents of a wife who honestly interferes in her behalf, though the interference was wholly unnecessary, and may have been detrimental to her interest and happiness, as well as that of her bus-, band.” Holtz v. Dick, 51 Am. Rep. 791. “Nor is the guilty agency of the defendant to be inferred from the fact that the plaintiff’s wife, on separating from him, went to the house of the defendants and remained with them. It was her former home; they were her parents. Burnett v. Burkhead et al., 21 Ark. 79. Observing the difference in the degree of proof which should be required for the purposes of a recovery for the loss of consortium in actions against parents and strangers we are emphatically of the opinion that the verdict in the case at bar was not only against the weight of the evidence but without sufficient evidence. Accordingly the judgment and order denying the motion for a new trial made at the trial term should be reversed and a new trial be had, with costs to the appellant to abide the event. The foregoing conclusion renders it unnecessary to discuss the order denying defendant’s motion for a pew trial made at special term. We are of the opinion that the order was properly made and that it should be affirmed.

Judgment and order of the trial term reversed, and new trial granted, with costs to appellant to abide the event. Order of the special term affirmed with costs.

Bookstaver, J., concurs.

Daly, C. J.

I think that there was sufficient evidence to sustain a verdict in favor of the plaintiff, but am of opinion that the verdict was excessive in amount, and for that reason a new trial should be ordered.  