
    Geller v. Geller.
    
      Evidence — Alienation of affections — Letters by third person to one not party to action — Contents extremely lewd and lascivious, enhancing damages awarded by jury — Admission in evidence prejudicial error, warranting new triad —Hearsay evidence.
    
    1. In a suit by a wife against an alleged paramour for alienation of her husband’s affections, letters, written by a stranger to the husband’s business associate and found in the latter’s possession, imputing lascivious conduct between the husband and the defendant, are not competent as evidence, where no connection therewith is shown on the part of the defendant. The statements made in such letters, not having; been made by or to a party to the suit or by any one authorized to speak for the defendant, are hearsay statements purely.
    2. Where the contents of such letters are extremely lewd and lascivious in character, and are calculated to arouse the passion and prejudice of a jury in its award of damages, their admission in evidence constitutes prejudicial error, for which a new trial should be granted.
    (No. 19689
    Decided December 21, 1926.)
    Error to tbe Court of Appeals of Lucas county.
    Blanche L. Geller, tbe defendant in error here, a former wife of Le Roy H. Geller, brought suit against Myrtle G. Geller, seeking damages for alienation of the affections of her husband. In the trial court the plaintiff secured a verdict in the sum of $50,000. On error to the Court of Appeals, that court found that two certain letters introduced in evidence by the plaintiff below were erroneously admitted, but that the admission of such evidence “was not so prejudicial as to require a reversal of the judgment.” The Court of Appeals also found the verdict and judgment excessive to the extent of $15,000, and required a remittitur of that amount, which, being consented to by the plaintiff, resulted in an affirmance of the judgment below in the sum of $35,000, as modified by the reviewing court.
    Upon the trial, plaintiff, over the objection of the defendant, introduced various exhibits, among them being the two letters alluded to by the Court of Appeals. These letters were extremely lewd, lascivious in character, and contained implications of illicit sexual commerce between the plaintiff’s husband and the defendant. It appeared that plaintiff’s husband and a business associate used jointly a roll-top desk, the compartments of which were divided between them, marked with their individual names, and containing separately their private and business affairs. Being suspicious of a liaison on the part of her husband, plaintiff searched this desk, and found the two letters in one of the compartments of this business associate, located on his side of the desk. Both letters were signed “Eskimo,” and were evidently written to this business associate by a woman other than the defendant. Upon the husband’s promise to discontinue his relations with the defendant and return to her, the plaintiff wife, having first made copies thereof, delivered both letters to her husband, who destroyed them. The record discloses no connection with or knowledge of such letters on the part of the defendant. Neither were they written by or to a party to the suit.
    
      Messrs. Miller, Brady, Yager é Leidy, for plaintiff in error.
    
      Messrs. Ritter & BrumbacJc, for defendant in error.
   Jones, J.

The action of the trial court in admitting these two letters in evidence was clearly erroneous. There is no rule of evidence which would sanction their admission. These letters were not written by or to a party to the suit; nor does the record disclose that the defendant below had any connection therewith, or any knowledge of their existence. They were not competent as part of the res gestae, since they contained no declaration made by or to a party to the action, or by any one authorized to speak for the defendant therein. They were evidently written by a woman to a business associate of the plaintiff’s husband, and, as against the defendant, were hearsay statements purely. No authority need be cited to show the incompetency of this class of testimony. The Court of Appeals was right in holding that these letters were erroneously admitted in evidence. However, the Court of Appeals, although finding the action of the lower court in this respect erroneous, held that the admission of such evidence was not so prejudicial as to require a reversal of the judgment. Accordingly it required a remittitur of $15,000, and modified and affirmed the judgment after the remittitur had been consented to by the plaintiff below.

•The implications contained in these letters were extremely lewd and lascivious in character; they indicated that a liaison existed between the husband of the plaintiff and the defendant. Moreover, if the jury believed the statements contained in these letters, the natural effect of the obscene and lascivious language used in them would be such as to arouse the passion and prejudice of the jury. It is, however, urged that, were these letters excluded, there was sufficient evidence upon which to base a substantial award for damages. While we may accede to this claim, we have no hesitation in saying that the contents of these letters had a natural tendency to enhance the amount of damages which the jury would otherwise have awarded. This verdict was for the sum of $50,000, and the simple fact that the Court of Appeals remitted such a large sum therefrom is indicative not only of the fact that these letters induced the amount of the original verdict, but also of the fact that their admission was calculated to arouse passion and prejudice. There is no doubt that they were extremely prejudicial to the defendant below.

The Court of Appeals erred in not remanding the case for a new trial. The judgment of the Court of Appeals is reversed, and the cause remanded for that purpose.

Judgment reversed and cause remanded.

Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.  