Kaspar v. Murray

Eschweiler, J. The only error alleged in this appeal is upon the ruling of the trial court in-refusing to permit plaintiff to examine the wife of defendant’s witness Gubine as to alleged statements made by him to her relative to the transaction in question. ’ • The’testimony sought to be elicited would tend to directly impeach the witness and show that he had testified falsely on material points in his direct examination as a witness for the defendant. Statements of such a nature made by one spouse to another, no one else being present,, and during coverture, are private and confidential communications between husband and wife. Being such, they are subject to the privilege of secrecy which public policy has deemed best to throw around such communications, and without the consent of the other the one spouse cannot be permitted to divulge them. The privilege exists just as well when the testimony is sought in a collateral suit as here, where neither husband nor wife is a party or interested in the litigation, as where they or either of them are or is so interested. Hopkins v. Grimshaw, 165 U. S. 342, 351, 17 Sup. Ct. 401; Stein v. Bowman, 13 Pet. (38 U. S.) 209, 222; Mahlstedt v. Ideal L. Co. 271 Ill. 154, 166, 110 N. E. 795; Williams v. Betts (Del.) 98 Atl. 371; Moore v. Wingate, 53 Mo. 398, 410; McCormick v. State, 135 Tenn. 218, 186 S. W. 95; 6 Ency. of Ev. 897; 40 Cyc. 2360. A statutory provision declaring that neither husband nor wife shall testify as to private conversations with each other has been declared to be but the restating of this common-law principle (Sampson v. Sampson, 223 Mass. 451, 458, 112 N. E. 84), and to be applicable even when the testimony is desired by a third person. Comm. v. Spencer, 212 Mass. 438, 451, 99 N. E. 266. [297] This court has strictly upheld, wherever the question has arisen, full recognition to similar privileges such as are found between physician and patient or lawyer and client. Casson v. Schoenfeld, 166 Wis. 401, 410, 166 N. W. 23; Herman v. Schlesinger, 114 Wis. 382, 391, 90 N. W. 460. We see no reason here for wavering from such course. This disposition of the case makes it unnecessary to consider sec. 4072, Stats. By the Court. — Judgment affirmed.