Sweikhart v. Hanrahan

Ostrander, J. (after stating the facts). 1. “Nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage,” is the language of the statute. 3 Comp. Laws, § 10213 (5 How. Stat. [2d Ed.] § 12857).. Objection was not made to the giving of testimony upon this ground, but the objection was that the communication was not in the presence of defendant. The statute evidences a rule of public policy; the privilege being the privilege of the spouse making the communication, the lips of both being sealed, unless both, otherwise, personally consent. The wife is not here objecting to the failure to observe the rule. The husband’s consent will be presumed, since he testified to the communications. I think it must be said that the wife, also, personally consented. She was living apart from her husband, and in another State, when the action was begun. It appears that whether she would or would not consent to return to this State to give her testimony was a subject which interested both parties to the suit. At the time of the trial she was living with her husband in Milwaukee, Wis.. She attended the trial, and it will be presumed that she knew the nature of the accusations made in her husband’s declaration. In substance and effect her testimony, given with the express consent of her husband, does not differ greatly from that [208] which was given by him concerning their relations, how they were affected by her conduct, and what she said to him. Her consent would therefore be evident, if the record were amended, as desired by appellant. Therefore the motion to amend will be denied. As to the objections based upon the fact that the defendant was not present when the statements were made, they are overruled upon the authority of Perry v. Lovejoy, 49 Mich. 529 (14 N. W. 485); McKenzie v. Lautenschlager, 113 Mich. 171 (71 N. W. 489). The testimony was introduced to prove the state of the wife’s feelings towards her husband. 2. It is plain that, however willing he may be to do so, a husband should not be permitted to recover damages for the carnal debauching of his wife by another without tendering the issue of criminal conversation and being bound by the rules of evidence which apply to the trial of the issue. The distinction between actions for damages for criminal conversation and those for alienation of affections, where such conduct is not charged, is pointed out in Perry v. Lovejoy, supra, 49 Mich., at pages 532, 533 (14 N. W. 485). It is the contention of appellant, and the principal one, that the plaintiff has in this case made out by his testimony and has had the advantage of the more serious charge, without alleging it and without affording him the opportunity to meet it. The statement of counsel for plaintiff, in the presence of the jury, that plaintiff abandoned the counts charging adultery was calculated, even if it was innocently made, to acquaint the jury with the fact that the more serious charge had been made. They could only have speculated about the reason for withdrawing it, and it is evident that the result of whatever speculation was indulged might have been favorable or unfavorable to defendant, according to the course of reason [209] ing pursued. It is not the purpose of trials of civil actions to invite or encourage such speculation, however it may result. Evil effects of such suggestions, or statements, may be so apparent as to= compel this court to reverse a judgment. I think they are not apparent here, and that, on the contrary, it is improbable that defendant was prejudiced by the statement of counsel. The testimony offered by plaintiff tended to support the charge contained in the first count of the declaration. None of it should have been rejected upon the ground that it was not competent for this purpose, namely, to prove alienation of affections unaccompanied by criminal conduct. See Merrill v. Leisenring, 149 Mich. 423, 428 (112 N. W. 1072). No error was committed in refusing to reject it, nor in refusing to rule that the husband and wife were not competent to give it. 3. I have examined the other errors assigned and argued. Testimony showing the conduct of defendant after plaintiff’s wife had left him, and after this action was begun, was competent and was material. If the wife is to be believed, she was willing to leave her husband for defendant, relying upon defendant’s promises to take care of her and, finally, to marry her. If she is believed, her purpose in this direction was halted because she believed defendant to be insincere. And while a defendant is in parlous circumstance when a husband and wife unite in such an action as this, I am not satisfied that prejudicial error is made to appear. The judgment is affirmed. Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.