Potter v. Womach

Opinion by BLEAKMORE, C. This is an action against Ollie Potter commenced in the district court of Noble county by D. C. Womach to recover damage for the alienation of his wife’s affections, her seduction, and loss of her society, etc. The parties are referred .to here as they appeared in the trial court. There was trial to a jury resulting in judgment for plaintiff, and defendant has appealed. Over objection to his competency as a witness, plaintiff was permitted to testify to an act of intercourse between his wife and defendant; and this is assigned as error. By statute (Rev. Laws 1910) it is provided : “Sec. 5046. No person shall be disqualified as a witness in any civil action or proceeding, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction -may be shown for the .purpose of affecting his credibility.” “See. 5050. The following persons shall be incompetent to testify: * * * “Third. Husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have a joint interest in the action. * * * ” By virtue of the latter section it is contended that plaintiff was incompetent to testify as a witness in his own behalf. It is argued that, although not made a party to the action, the interests of the wife were involved therein and affected by the judgment, and that the husband was erroneously permitted to testify against her; and as evi- - dencing a legislative construction of the foregoing provisions, and an intent to absolutely exclude the testimony of either husband or wife which might affect the interests or tend to criminate the other in all cases save those for divorce, defendant cites section 4978. Rev. Laws 1910, which provides: “In any action for divorce hereafter tried, the parties thereto, or either of them, shall be competent to testify in like manner, re *108 specting any fact necessary or proper to be proven, as parties to other civil actions are allowed to testify.” Defendant also relies upon Cornelius v. Hambay, 150 Pa. 359, 24 Atl. 515, -where the Pennsylvania court, construing a similar statute, held the husband disqualified as a witness to prove criminal intercourse of his wife with defendant iñ a like action. Our statute was adopted from Kansas. Construing it, the Supreme Court of Kansas, in Roesner v. Darrah, 65 Kan. 599, 70 Pac. 597, held: “In an action by a husband for damages for alienating the affections of his wife and for her seduction, he is a competent witness except as to transactions or communications had by him with his wife.” In the opinion it is held: “The defendant below, the defendant in error here, places a literal construction on section 323 of the Civil Code (Gen. Stat. 1901, sec. 4771), which reads: ‘The following persons shall be incompetent to testify:.* * * Third, husband and wife, for or against each other,’ etc. He says that this statute does not merely disqualify husbands and wives from testifying, for or against each others’ claims to the subject-matter in litigation, but disqualifies them as well from testifying •to each others’ personal character, conduct, status, or other matter in interest, whether they be parties to the litigation -or not, and whether the judgment rendered would put the character, conduct, status or matter in interest in the category of res judicata or not. In other words, the contention is that, inasmuch as the litigation involved the subject of the wife’s fidelity to the husband, and inasmuch as she, though not a party litigant, was incompetent to testify for or against him, he, though a party, was equally incompetent to testify against her. This contention derives support from some of the decisions, a principal one of which is Cornelius v. Hambay, 150 Pa. St. 359, 24 Atl. 515. It was there held, in a case of the character of this one, that a husband was incompetent to testify to the adultery of his wife, although she was not a party to the suit. That holding was made under a statute like ours. It may be that the decision was satisfactorily reasoned, so far as that one statute was concerned. but in this state we have, in addition to such statute, another one of material significance. Section 319 of the Civil Code (Gen. Stat. 1901, sec. 4767) reads: ‘No person shall be disqualified as a witness in any civil action or proceeding by reason of his interest in the event of the same, as a party or otherwise,’ etc. This statute abrogates the common-law rule of disqualification to testify because of interest, and, except as limited by other statutes in pari materia, makes every person competent to give evidence in any case. The limitation contained in the third subdivision of section 323 of the Civil Code, supra, does not apply in such a case as this. That applies only to prohibit a husband or wife, when not a party to the suit, from testifying for or against the other one who is a party; not to prohibit the one who is a party from testifying for or against the other one who is not. This statement of the general rule is not intended, of course, to be inclusive of those exceptions which the statute itself makes, and which exist in that part of it not above quoted. The language of the opinion in Higbee v. McMillian, 18 Kan. 133, while not having relation to a state of facts identical with those in this case, nevertheless declares a principle applicable to the general question, and definitely and positively settles the rule against the contention of the defendant in error. See, also. Van Fleet v. Stout, 44 Kan. 523, 24 Pac. 960.” This construction of the statutory provision in question is, in our opinion, logically correct. Plaintiff was a competent witness •to the facts concerning which he testified. Defendant also assigns as error the embodying of the italicized words in the following charge to the jury: “You are the sole and exclusive judges of the facts, the weight of the evidence and the credibility of the witnesses, but you are bound by the law as given you by the court; in determining the weight or credit you will give to the testimony of each of the witnesses who have testified before you, you may take into consideration their conduct and demeanor on the stand and in the presence of the jury, their bias or prejudice, if any have been manifest, the probability or improbability of their Stories, their relationship to the parties in the case, their means of information and opportunities of knowing about matters concerning which they have testified, their interest or lack of ^interest in the result of this suit, and all other facts and circumstances in evidence or coming to your observation during the trial.” It is contended that the jury in arriving at a verdict, by virtue of the language employed, was authorized to consider facts and circumstances not in evidence, but otherwise coming to their observation during the trial, and it is insisted that inasmuch as it was alleged and attempted to be proved that the intimate relations between defendant and the wife of plaintiff had existed for some six or seven years, that such instruction was peculiarly prejudicial in the light of certain circumstances attendant upon the trial, in this, that plaintiff and defendant each had a child about four years of age present at the hearing, and that these children were dressed alike and bore a striking resemblance to each other, which was noted and commented on by the jurors when considering the case in the jury room, as appears by the testi *109 mony of two members of the jury given on the hearing of the motion for new trial. Relative to this assignment of error, defendant in his brief says: •‘It is proper, of course, to instruct the jury that they may take into consideration all other facts and circumstances in evidence, but it was absolutely erroneous to instruct the jury that in addition to the facts and circumstances in evidence they may take into consideration all other facts and circumstances coming to their observation during the trial. It is to be noted that these two clauses are connected by the disjunctive ‘or,’ instead of their conjunctive ‘and,’ so that by the language used the trial judge told the jury that they could consider facts and circumstances which came to their observation during the trial, outside of such facts and circumstances as were in evidence.” We are not favorably impressed with the contention of defendant as to the effect of the language employed in the instruction. It is unlikely that the jurors in considering their verdict were influenced by the verbal inaccuracy imputed to the charge; but on the contrary, it is probable that they viewed the facts and circumstances of the case as reasonable men, without’undue regard to the use of a disjunctive instead of a conjunctive conjunction, and arrived at the same conclusion which would have been reached had the court employed “and” rather than “or” in the portion of the instruction of which complaint is made. Relative to a similar instruction it was said by the Supreme Court of Nebraska, in Jessen v. Donahue, 4 Neb. (Unof.) 838, 96 N. W. 639: “Another objection to this instruction is based on the closing paragraph. The defendant insists that in the use of the words, ‘and the surrounding circumstances appearing on the trial,’ the court erred, because it did not limit the jury to the consideration of such matters as were directly connected with the testimony offered on the trial. We do not think this objection well founded. The phrase, ‘circumstances appearing on the trial,’ is the equivalent of ‘circumstances shown on the trial,’ and we do not think a jury of ordinary intelligence, after having been instructed that the complainant was re.quired to establish her charge by a preponderance of the evidence, were at all likely to have inferred that they were at liberty to take into account matters not shown in the evidence.” We are of opinion that the instruction complained of was substantially correct, and that the rights of the defendant were not prejudicially affected thereby. An examination of the entire record discloses that the judgment is sustained by the evidence, and the instructions fairly state the law applicable. No reversible erra.' appearing, the judgment should be affirmed. By the Court: It is so ordered.