The opinion
BROWN, J.,
Dissenting. — I dissent from the statement contained in the prevailing opinion that defendant’s exhibit I, being a letter from plaintiff’s wife to her relatives, bearing date October 17, 1917, was admissible. The opinion states:
‘ ‘ The fact remains that Evelyn wrote the letter and that it tends to contradict the testimony of the plaintiff that at all times they lived happily together in Montana. Under all the rules of evidence the letter was competent * * .”
It is an attempt to contradict the testimony of the plaintiff by an unsworn statement contained in the communication from the wife. If this communication is admissible, where does relevancy commence and competency end?
The defendant wrote a letter to the plaintiff bearing date March 2, 1919, which was received in evidence over plaintiff’s objection. The purpose of the letter was to repel the charge of malice. The writer believes that this letter was a self-serving declaration and inadmissible, and its admission in evidence was contrary to the well-established rule of broad application that the declarations of a party in his own favor are not admissible in his behalf: Jones on Evidence (2 ed.), § 236, and the many eases cited in footnote.
Also, it is stated in 22 C. J., page 220, that:
*223 “It is a well-established general rule that a statement of a party, whether oral or written, which is off a self-serving nature, is not admissible in evidence in. his favor * * .” Also many authorities there cited».
A text-writer has thus stated the rule:
“A party’s declarations in his own favor are, as? a rule, incompetent. The extrajudicial statement off one to be benefited by the truth of that which he asserts cannot be received in proof of the facts alleged., either for the declarant’s benefit or that of his successors in interest. In most cases, such a statement; is plainly irrelevant for the purpose. Self-interest, is deemed, in this connection, a controlling motive to-, misrepresent which will render the declarations inadmissible and authorize their rejection.
“Little probative relevancy is gained from the circumstances under which the self-serving declaration, may have been made. Nor is it material, in this connection, whether the assertions are oral or in writing- * * ”: 4 Chamberlayne, Modern Law of Evidence (Relevancy), § 2734.
To similar effect, see 2 "Wharton’s Criminal Evidence (10 ed.), §§ 690, 691; State v. Anderson, 10 Or. 448 , where this court held that:
“Evidence of a party’s previous declarations is: admissible as evidence against him, but not in his favor unless as res gesta, in criminal, the same as in-civil cases.
To like effect see State v. Smith, 43 Or. 109, 110 ( 71 Pac. 973 ); Worth v. Richter, 63 Or. 114, 116 ( 126 Pac. 987 ); Service Lbr. Co. v. Sumpter Val. Ry. Co. 67 Or. 63, 80 ( 135 Pac. 539 ); Hillsboro Nat. Rank v. Garbarino, 82 Or. 405, 410 ( 161 Pac. 703 ).
The matter referred to in the letter was material under the issues made in this case. The defendant mother was not liable to plaintiff in damages for the.act of desertion by his wife, unless the mother was *224 .actuated by malice or ill will toward tbe plaintiff in advising her daughter. The defendant cannot disclaim ill will by writing a letter to the plaintiff and then upon trial prove absence of malice by that unsworn self-serving declaration, whether written in good faith or otherwise. If so, a good designing letter-writer might make the better case.
For the reason that I deem the precedent dangerous, I record my dissent.