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trial.

(- Or. - 223 Pao. 730.) 194 Pac. 686; Roberts v. Cohen, 104 is limited to granting a new trial, Or. 177, 190, 206 Pac. 295.

and that the court was without auA fair construction of the evi- thority to enter judgment for dedence adduced by the plaintiff upon fendants, as was done in the instant the trial of the instant case discloses case. an entire lack of any fact or circum- In Herndobler v. Rippen, 75 Or. stance from which malice upon the 22, 146 Pac. 140, it was held that, part of the defendants might be im- as a general rule, a trial court explied. No act committed by defend- ceeds its power when, upon motion ants, singly or in concert, is shown, for new trial, it sets aside a verdict accompanied by an intention or de and enters final judgment without sign to alienate the affections of such trial, but that in cases like the plaintiff's wife, and such cooling of instant case, where, if the cause the affections of the latter for her were to be sent back

necessity of husband as is shown by the evidence for a new trial, the granting a new plainly appears to have been caused result must necesby plaintiff's misconduct. Manifest- sarily be the same, and it appears ly such conduct was the controlling that justice has been done, and that cause of the conditions in his marital a new trial would result in the same relations of which plaintiff com- judgment, the action of the lower plains. Consequently, the evidence court will not be reversed for enterwas insufficient to support the ver- ing a final judgment without a new

dict of the jury, and trial. Trial-power to

it was within the The doctrine announced in the set aside verdiet.

power of the court case last cited is peculiarly applito set the same aside and also any cable to the instant case, and the judgment given thereon. That pow- rule therein announced should be ener might be exercised by the court forced here. upon its own motion. De Vall v. De It was recited in the order of the Vall, 60 Or. 493, 40 L.R.A.(N.S.) trial court setting aside the verdict, 291, 118 Pac. 843, 120 Pac. 13, Ann. that plaintiff's complaint was insufCas, 1914A, 409; Smith Typewriter ficient and did not state a cause of Co. v. McGeorge, 72 Or. 523, 143 action, but, as the court was warPac. 905; Frederick & Nelson v. ranted in setting aside the verdict Bard, 74 Or. 457, 461, 145 Pac. 669 and entering judgment for the de(verdict set aside before judgment fendants, even though the complaint entered thereon) ; Pullen v. Eugene, stated a cause of action, we find it 77 Or. 320, 146 Pac. 822, 147 Pac.

unnecessary to determine whether 768, 1191, 151 Pac. 474, Ann. Cas. the complaint was sufficient to sup1917D, 933; Spokane County v. Pa- port a judgment. cific Bridge Co. 106 Or. 550, 553,

The judgment of the Circuit 213 Pac. 151.

Court is affirmed. Counsel for plaintiff in the instant case contends that the power of the Bean, Rand, and Coshow, JJ., court, upon setting aside a verdict, concur.

ANNOTATION.

Action for alienation of affections based on exercise of religious influences.

The general rule is that, in the ab- implying malice in law, in order to resence of the element of adultery or se- cover; malice in this sense does not, duction, the plaintiff must show not however, necessarily mean that which only that the defendant intentionally proceeds from a spiteful, malignant, alienated the spouse's affections, but, or revengeful nature. 13 R. C. L. 1466, that the defendant acted either ma- 8 515. liciously or from improper motives, But few cases, other than the reported case (HUGHES v. HOLMAN, ante, the society by keeping him interested 1108), have been found, in which re- in it and having him continue his doligious differences or influences have nations, and that she was hostile been involved in actions for alienation to the plaintiff because of her marof affections.

riage and because of her testiIn Mohn v. Tingley (1923) Cal. mony, harmful to the society, in a li

217 Pac. 733, the court affirmed a bel suit which had been brought by judgment in favor of a wife for the defendant against a publishing $100,000 damages against a woman company, and had deliberately set out who was the head of a theosophical to prejudice the husband against the society, for the alienation of the hus- plaintiff's daughter, to whom she was band's affections, the plaintiff's theory devoted, with the view of creating disbeing, apparently, that the description cord in the family, and disparaged the of her domestic affairs was the result plaintiff in order to prejudice her husof the defendant's activity as head band against her. of the society. Both the plaintiff and In Rice v. Rice (1895) 104 Mich. her husband were theosophists before 371, 62 N. W. 833, reversing a judgtheir marriage, but at the time of the ment for plaintiff in an action by a marriage, to which the defendant had wife, who was a Catholic, against her objected, had withdrawn from mem- father-in-law, a Protestant, for the bership. Thereafter, through the in- alienation of the husband's affection, fluence of the defendant, the plain- it appeared that the families of both tiff's husband changed his attitude the plaintiff and the husband objected towards theosophy, and decided to live to the marriage, but whether on the at the homestead of the colony, the ground of difference of religion does plaintiff, at his insistence, accompany- not appear expressly—although that ing him.

From then until the hus- is inferable; it does appear, however, band abandoned the plaintiff, the de- that the husband refused to be marfendant exercised a control over the ried by a Catholic ceremony and the household, practically dictating the wife assented to a Protestant marmovements of the husband, influencing riage, and, from then until the day the him to contribute his fortune to vari- husband abandoned her, did not atous branches of the society, prejudic- tend a Catholic Church; on that day, ing him against the plaintiff's daugh- on return from church, she was inter by false statements, and finally formed by her husband, in the presagainst the plaintiff herself by the ence of his father, that, as she had resame means, until they became sepa- turned to the church, he would no rated over "trouble" which plaintiff longer live with her, and the defendclaimed was caused by the defendant. ant told the husband that if they were The court held that the testimony going to separate it was best to do so bearing on the donations to the so- before children were born. On appeal ciety, and that relating to the defend- from a judgment for the plaintiff, it ant's assistance in the household was held that testimony that the deaffairs, was properly admissible as fendant told the plaintiff, in the presbearing on the question of alienation ence of others, that "he would rather of the husband's affections, because see his son dead than living with a the evidence as a whole showed that Catholic," was competent; statements the defendant exercised an extensive of the defendant's wife, who had testicontrol over the members of, and was fied she objected to the marriage, of a dominant influence in, the society, the ground of her objections, were, and it was impossible to distinguish however, held properly excluded as not her official acts and those done in her bearing on issue of alienation, and private capacity. In stating that the questions on her cross-examination, verdict was justified, the court said it whether the extent of the plaintiff's was reasonably deducible from the suing against the defendant's houseevidence that the defendant was try- hold was attending church at the time ing to bind the plaintiff's husband to of the separation, and whether a person should not be allowed to embrace right to object to his son marrying a the religion they wished, were held Roman Catholic, and a right to advise improper. Instructions to the jury, him that it would be unwise to live which, so far as they bear on the

with her if she again joined the question under annotation, were that, in order to find the defendant liable,

church, were held proper as within they must find that the separation re

the rule protecting the rights of parsulted from his having alienated the ents to advise their children. husband's affections; that he had a

G. S. G.

MELVIN NOLTING et al., by Next Friend,

V.
THOMAS HOLT et al., Appts.

Kansas Supreme Court May 12, 1923.

(113 Kan. 495, 215 Pac. 281.) Evidence of paternity.

1. The action was one by two mulattoes to recover real estate as recognized sons and heirs of a deceased negro. The mother of the plaintiffs was a white woman, and when they were conceived and born she was living with her husband, a white man. After proving it was impossible for their mother's husband to be their father, the children called their mother as a witness, and she testified the negro was their father. Held, the testimony was properly received.

[See note on this question beginning on page 1119.] Appeal - merit of assignments. considered, and held to be without 2. Various assignments of error substantial merit. Headnotes by BURCH, J.

APPEAL by defendants from a judgment of the District Court for Shawnee County (Whitcomb, J.) in favor of plaintiffs in an action brought to recover possession of certain land and for partition. Affirmed.

The facts are stated in the opinion of the court.

Messrs. W. A. S. Bird and Elisha white woman, and they claimed Scott for appellants.

James Holt was their father. Messrs. J. J. Schenck and W. E. When the plaintiffs were conAtchison for appellees.

ceived and born, Hattie Nolting was Burch, J., delivered the opinion of the wife of Charles Nolting, a white the court:

man, and was living with her husThe action was one of ejectment band. She had previously borne to and for partition. The plaintiffs her husband nine white children. prevailed, and the defendants ap- The questions of fact in the case peal.

were: First, Are the plaintiffs chilIn March, 1919, James Holt, a dren of James Holt? and, Second, negro, the owner of the land in con- Had he generally and notoriously troversy, died intestate. He left a recognized them as his children? son, Thomas Holt, and the children There was no dispute that the plainof a deceased daughter, as legiti- tiffs are children of Mrs. Nolting. mate heirs. They are the defend- The plaintiffs proved it was imants. The plaintiffs are mulattoes. possible for them to be children of They are sons of Hattie Nolting, a Charles Nolting. They also introduced evidence establishing a state otherwise well proved became a cerof affairs which made it morally tainty. No jury, sensible of its recertain James Holt was their father, sponsibility, could decline to find proved general reputation in the that the plaintiffs are sons of James community that they were children Holt, and the court will not conof James Holt, and produced evi- sume space in discussing errors asdence that he recognized them as signed relating to the paternity his sons, and referred to them and branch of the case. treated them as such. The plain- There is little else of importance tiffs then called Mrs. Nolting, who in the case. The defendants comtestified their father was James plain of an amendment to the petiHolt. The defendants complain of tion made at the trial. . The allegaadmission of Mrs. Nolting's testi- tions of the petition that James Holt mony.

left surviving him as heirs his sons, Many cases are cited which prop- the plaintiffs, and that at his death erly hold there is a presumption of the plaintiffs became legal and equilegitimacy, and that, in the interest table owners of designated interests of public policy, a woman should not in the land, authorized evidence of be permitted to testify that some heirship, whether as legitimate or man other than her husband is the illegitimate children. The subject father of her child, born in wedlock. of illegitimacy was presented in the The cases are not pertinent here. opening statement to the jury on Under all the authorities the pre- behalf of the plaintiffs. The issue sumption of legitimacy may be over- was tried out, much evidence being come by proof. Proof that it is im- produced on both sides. The amendpossible the husband of its mother ment to the petition setting up reccould be the child's father is admis- ognition was unnecessary. If the sible, and, being admitted, estab- amendment had been essential, the lishes illegitimacy. Whether proof court had discretion to permit it to of less cogency will suffice need not be made at close of the evidence, be considered. In this instance, and a contention that counsel for Charles Nolting was a blue-eyed, the defendant were misled by abflaxen-haired German, with a good sence from the petition of allegarecord for siring white children, and tions of illegitimacy and recognition he had no more potency to beget a was given due consideration by the mulatto child by his white wife than trial court. he would have had if he had been The defendants complain of cerbeyond the seas, or had been cas- tain testimony given by the plaintrated. When all the ends which tiffs relating to recognition. The the presumption of legitimacy is de- testimony was properly admitted, signed to conserve have been de- because that given by each one refeated by sordid facts, the courts lated to a subject in which he was must deal with the situation in a not interested. Recognition of one common-sense way. The statute did not establish right of the other grants to an illegitimate child in- to inherit. In Shorten v. Judd, 56 heritance from its father. Its moth- Kan. 43, 54 Am. St. Rep. 587, 42 er knows who the father was. Her Pac. 337, the incompetent evidence

evidence is the best of marriage was proof of legitimacy Evidence-of

evidence, and jus- of offspring. Besides that, the evipaternity.

tice to the child re- dence here complained of related to quires that she be a competent wit- paternity, which was otherwise conness to its paternity.

clusively proved. Furthermore, It is not necessary to discuss the counsel for defendants say the testestimony relating to paternity of timony was fabricated, and, if that these children. When the direct be true, of course the jury disreand cross examinations of Mrs. garded it. Nolting were completed, what was The defendants were not entitled (113 Kan. 495, 215 Pac. 281.) to have what might be good points rious recognition of the plaintiffs as in discussing the evidence before his sons by James Holt was ample to the jury made the subject of spe- sustain the verdict. cial instructions by the court. The

The record is free from any erinstructions given relating to consideration of the evidence by the

ror which requires
the granting of a of assignments.

Appeal-merit jury were adequate and correct, and the instructions given were other

new trial, and the wise sufficient and sound.

judgment of the District Court is The evidence of general and noto- affirmed.

ANNOTATION.

Admissibility on issue of legitimacy or paternity, of evidence that child born

during wedlock is of different race or color than the mother's husband.

The strictness of the early rule lower court erred in refusing to adwhich admitted only proof of the hus- mit evidence that a child was a muband's impotence, or absence beyond latto, that his mother and her husband the four seas, to rebut the presump- were both white, and expert testimony tion of legitimacy of a child born of a physician that the husband could during wedlock, has been relaxed so not have been the child's father, upon as to admit of other evidence to show the ground that the jury was entitled the impossibility of the husband's to consider such evidence in deterbeing the father. See 3 R. C. L. 727. mining whether the child was a bas

It will be observed that in the re- tard. The President (Tucker) disported case (NOLTING v. Holt, ante, cussed in a note his understanding 1117) the ultimate question was not of the physiological aspects of such a merely as to the legitimacy of the departure from the uniform course of children, or whether they were be- nature, gotten by their mother's husband, but In Sullivan y. Hugly (1861) 32 whether they were the children of Ga. 316, a physician was permitted to a certain other man as whose heirs testify, apparently without objection, they were claiming. The primary his opinion that an only child was a question, however, as to the admis- half negro, the mother and her hussibility of evidence of the character band being white, but the evidence offered to rebut the presumption that was not sufficiently corroborated to they were the children of their overcome the presumption of legitimother's husband would seem to be macy. A hearsay statement of a midpractically the same as if their legiti- wife's opinion to the same effect was macy had been the ultimate issue; rejected. The court said: "If these and that presumption being rebutted, opinions were infallible, then it was there remained simply the question, an absolute impossibility for the child not within the scope of the annotation, to have been the legitimate offspring as to the sufficiency of evidence that of Amos Hugly, but they are not. the deceased was the father.

The child, notwithstanding these The question whether evidence that traits or characteristics, might have a child born during wedlock is of a been the child of Amos Hugly. We different race or color than the moth- constantly see departures in the negro er's husband is admissible for the and white races, from the peculiar purpose of rebutting the presumption and natural characteristics of these that the latter is the father, or, as the respective varieties, more glaring and question is usually framed, to rebut striking than those pointed out by the presumption of legitimacy, has these witnesses, and yet the parents been presented in but few cases. of the descent cannot be questioned.

In Watkins v. Carlton (1840) 10 The defect in the evidence is that Leigh (Va.) 560, an action for recov- there is not enough of concurrent ery of property, it was held that a testimony to this point to overcome

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