194 Pac. 686; Roberts v. Cohen, 104 Or. 177, 190, 206 Pac. 295.

A fair construction of the evidence adduced by the plaintiff upon the trial of the instant case discloses an entire lack of any fact or circumstance from which malice upon the part of the defendants might be implied. No act committed by defendants, singly or in concert, is shown, accompanied by an intention or design to alienate the affections of plaintiff's wife, and such cooling of the affections of the latter for her husband as is shown by the evidence plainly appears to have been caused by plaintiff's misconduct. Manifestly such conduct was the controlling cause of the conditions in his marital relations of which plaintiff complains. Consequently, the evidence was insufficient to support the ver

Trial-power to set aside verdict.

dict of the jury, and it was within the power of the court to set the same aside and also any judgment given thereon. That power might be exercised by the court upon its own motion. De Vall v. De Vall, 60 Or. 493, 40 L.R.A. (N.S.) 291, 118 Pac. 843, 120 Pac. 13, Ann. Cas, 1914A, 409; Smith Typewriter Co. v. McGeorge, 72 Or. 523, 143 Pac. 905; Frederick & Nelson v. Bard, 74 Or. 457, 461, 145 Pac. 669 (verdict set aside before judgment entered thereon); Pullen v. Eugene, 77 Or. 320, 146 Pac. 822, 147 Pac. 768, 1191, 151 Pac. 474, Ann. Cas. 1917D, 933; Spokane County v. Pacific Bridge Co. 106 Or. 550, 553, 213 Pac. 151.

Counsel for plaintiff in the instant case contends that the power of the court, upon setting aside a verdict,

is limited to granting a new trial, and that the court was without authority to enter judgment for defendants, as was done in the instant

case.

In Herndobler v. Rippen, 75 Or. 22, 146 Pac. 140, it was held that, as a general rule, a trial court exceeds its power when, upon motion for new trial, it sets aside a verdict and enters final judgment without such trial, but that in cases like the instant case, where, if the cause were to be sent back

-necessity of

trial.

for a new trial, the granting a new result must necessarily be the same, and it appears that justice has been done, and that a new trial would result in the same judgment, the action of the lower court will not be reversed for entering a final judgment without a new trial.

The doctrine announced in the case last cited is peculiarly applicable to the instant case, and the rule therein announced should be enforced here.

It was recited in the order of the trial court setting aside the verdict, that plaintiff's complaint was insufficient and did not state a cause of action, but, as the court was warranted in setting aside the verdict and entering judgment for the defendants, even though the complaint stated a cause of action, we find it unnecessary to determine whether the complaint was sufficient to support a judgment.

The judgment of the Circuit Court is affirmed.

Bean, Rand, and Coshow, JJ.,

concur.

The general rule is that, in the absence of the element of adultery or seduction, the plaintiff must show not only that the defendant intentionally alienated the spouse's affections, but, that the defendant acted either maliciously or from improper motives,

implying malice in law, in order to recover; malice in this sense does not, however, necessarily mean that which proceeds from a spiteful, malignant, or revengeful nature. 13 R. C. L. 1466, 515.

But few cases, other than the re

ported case (HUGHES V. HOLMAN, ante, 1108), have been found, in which religious differences or influences have been involved in actions for alienation of affections.

In Mohn v. Tingley (1923) Cal. 217 Pac. 733, the court affirmed a judgment in favor of a wife for $100,000 damages against a woman who was the head of a theosophical society, for the alienation of the husband's affections, the plaintiff's theory being, apparently, that the description of her domestic affairs was the result of the defendant's activity as head of the society. Both the plaintiff and her husband were theosophists before their marriage, but at the time of the marriage, to which the defendant had objected, had withdrawn from membership. Thereafter, through the influence of the defendant, the plaintiff's husband changed his attitude towards theosophy, and decided to live at the homestead of the colony, the plaintiff, at his insistence, accompanying him. From then until the husband abandoned the plaintiff, the defendant exercised a control over the household, practically dictating the movements of the husband, influencing him to contribute his fortune to various branches of the society, prejudicing him against the plaintiff's daughter by false statements, and finally against the plaintiff herself by the same means, until they became separated over "trouble" which plaintiff claimed was caused by the defendant. The court held that the testimony bearing on the donations to the society, and that relating to the defendant's assistance in the household affairs, was properly admissible as bearing on the question of alienation of the husband's affections, because the evidence as a whole showed that the defendant exercised an extensive control over the members of, and was a dominant influence in, the society, and it was impossible to distinguish her official acts and those done in her private capacity. In stating that the verdict was justified, the court said it was reasonably deducible from the evidence that the defendant was trying to bind the plaintiff's husband to

the society by keeping him interested in it and having him continue his donations, and that she was hostile to the plaintiff because of her marriage and because of her testimony, harmful to the society, in a libel suit which had been brought by the defendant against a publishing company, and had deliberately set out to prejudice the husband against the plaintiff's daughter, to whom she was devoted, with the view of creating discord in the family, and disparaged the plaintiff in order to prejudice her husband against her.

In Rice v. Rice (1895) 104 Mich. 371, 62 N. W. 833, reversing a judgment for plaintiff in an action by a wife, who was a Catholic, against her father-in-law, a Protestant, for the alienation of the husband's affection, it appeared that the families of both the plaintiff and the husband objected to the marriage, but whether on the ground of difference of religion does not appear expressly-although that is inferable; it does appear, however, that the husband refused to be married by a Catholic ceremony and the wife assented to a Protestant marriage, and, from then until the day the husband abandoned her, did not attend a Catholic Church; on that day, on return from church, she was informed by her husband, in the presence of his father, that, as she had returned to the church, he would no longer live with her, and the defendant told the husband that if they were going to separate it was best to do so before children were born. On appeal from a judgment for the plaintiff, it was held that testimony that the defendant told the plaintiff, in the presence of others, that "he would rather see his son dead than living with a Catholic," was competent; statements of the defendant's wife, who had testified she objected to the marriage, of the ground of her objections, were, however, held properly excluded as not bearing on issue of alienation, and questions on her cross-examination, whether the extent of the plaintiff's suing against the defendant's household was attending church at the time of the separation, and whether a per

duced evidence establishing a state of affairs which made it morally certain James Holt was their father, proved general reputation in the community that they were children of James Holt, and produced evidence that he recognized them as his sons, and referred to them and treated them as such. The plaintiffs then called Mrs. Nolting, who testified their father was James Holt. The defendants complain of admission of Mrs. Nolting's testimony.

Many cases are cited which properly hold there is a presumption of legitimacy, and that, in the interest of public policy, a woman should not be permitted to testify that some man other than her husband is the father of her child, born in wedlock. The cases are not pertinent here. Under all the authorities the presumption of legitimacy may be overcome by proof. Proof that it is impossible the husband of its mother could be the child's father is admissible, and, being admitted, establishes illegitimacy. Whether proof of less cogency will suffice need not be considered. In this instance, Charles Nolting was a blue-eyed, flaxen-haired German, with a good record for siring white children, and he had no more potency to beget a mulatto child by his white wife than he would have had if he had been beyond the seas, or had been castrated. When all the ends which the presumption of legitimacy is designed to conserve have been defeated by sordid facts, the courts must deal with the situation in a common-sense way. The statute grants to an illegitimate child inheritance from its father. Its mother knows who the father was. Her evidence is the best evidence, and justice to the child requires that she be a competent witness to its paternity.

Evidence-of paternity.

It is not necessary to discuss the testimony relating to paternity of these children. When the direct and cross examinations of Mrs. Nolting were completed, what was

otherwise well proved became a certainty. No jury, sensible of its responsibility, could decline to find that the plaintiffs are sons of James Holt, and the court will not consume space in discussing errors assigned relating to the paternity branch of the case.

There is little else of importance in the case. The defendants complain of an amendment to the petition made at the trial. The allegations of the petition that James Holt left surviving him as heirs his sons, the plaintiffs, and that at his death the plaintiffs became legal and equitable owners of designated interests in the land, authorized evidence of heirship, whether as legitimate or illegitimate children. The subject of illegitimacy was presented in the opening statement to the jury on behalf of the plaintiffs. The issue was tried out, much evidence being produced on both sides. The amendment to the petition setting up recognition was unnecessary. If the amendment had been essential, the court had discretion to permit it to be made at close of the evidence, and a contention that counsel for the defendant were misled by absence from the petition of allegations of illegitimacy and recognition was given due consideration by the trial court.

The defendants complain of certain testimony given by the plaintiffs relating to recognition. The testimony was properly admitted, because that given by each one related to a subject in which he was not interested. Recognition of one did not establish right of the other to inherit. In Shorten v. Judd, 56 Kan. 43, 54 Am. St. Rep. 587, 42 Pac. 337, the incompetent evidence of marriage was proof of legitimacy of offspring. Besides that, the evidence here complained of related to paternity, which was otherwise conclusively proved. Furthermore, counsel for defendants say the testimony was fabricated, and, if that be true, of course the jury disregarded it.

The defendants were not entitled

The strictness of the early rule which admitted only proof of the husband's impotence, or absence beyond the four seas, to rebut the presumption of legitimacy of a child born during wedlock, has been relaxed so as to admit of other evidence to show the impossibility of the husband's being the father. See 3 R. C. L. 727.

It will be observed that in the reported case (NOLTING v. HOLT, ante, 1117) the ultimate question was not merely as to the legitimacy of the children, or whether they were begotten by their mother's husband, but whether they were the children of a certain other man as whose heirs they were claiming. The primary question, however, as to the admissibility of evidence of the character offered to rebut the presumption that they were the children of their mother's husband would seem to be practically the same as if their legitimacy had been the ultimate issue; and that presumption being rebutted, there remained simply the question, not within the scope of the annotation, as to the sufficiency of evidence that the deceased was the father.

The question whether evidence that a child born during wedlock is of a different race or color than the mother's husband is admissible for the purpose of rebutting the presumption that the latter is the father, or, as the question is usually framed, to rebut the presumption of legitimacy, has been presented in but few cases.

In Watkins v. Carlton (1840) 10 Leigh (Va.) 560, an action for recovery of property, it was held that a

lower court erred in refusing to admit evidence that a child was a mulatto, that his mother and her husband were both white, and expert testimony of a physician that the husband could not have been the child's father, upon the ground that the jury was entitled to consider such evidence in determining whether the child was a bastard. The President (Tucker) discussed in a note his understanding of the physiological aspects of such a departure from the uniform course of nature.

In Sullivan v. Hugly (1861) 32 Ga. 316, a physician was permitted to testify, apparently without objection, his opinion that an only child was a half negro, the mother and her husband being white, but the evidence was not sufficiently corroborated to overcome the presumption of legitimacy. A hearsay statement of a midwife's opinion to the same effect was rejected. The court said: "If these opinions were infallible, then it was an absolute impossibility for the child to have been the legitimate offspring of Amos Hugly, but they are not. The child, notwithstanding these traits or characteristics, might have been the child of Amos Hugly. We constantly see departures in the negro and white races, from the peculiar and natural characteristics of these respective varieties, more glaring and striking than those pointed out by these witnesses, and yet the parents of the descent cannot be questioned. The defect in the evidence is that there is not enough of concurrent testimony to this point to overcome