Adkins v. Brett

OLNEY, J.

The action involved in the present appeal is one for damages for the alienation by the defendant of the plaintiff's wife. The cause was tried before a jury, a verdict was returned for the plaintiff, and from the judgment entered upon the verdict the defendant appeals.

The first point made on behalf of the defendant is that the verdict is not supported by the evidence. No question is made but that the evidence supports the conclusion that the husband had lost the affection of his wife, as a result of which she insisted upon a separation, or, if the testimony on behalf of the plaintiff be believed, as it must be taken it was by the jury, that acts of criminal conversation had taken place between the plaintiff's wife and the defendant. The particular in which it is claimed the evidence is insufficient is, according to counsel's contention, that it does not show that the defendant lured and enticed the plaintiff's wife from her husband, was her seducer, so to speak. Passing by the question as to whether or not evidence of adultery by a wife not shown to have theretofore lost her affection for her husband is not sufficient of itself to justify an inference of active seduction on the part of the man involved, it is sufficient for the purposes of this case to say that there was evidence of statements by the defendant to a male companion by the name of Tucker made the day after a call by the two upon the wife as to what had taken place the night before, which, if true, justified the conclusion that the defendant was the active aggressor against the wife's resistance on the occasion when first they had criminal intercourse. It is only fair to say that the making of the statements was denied by the defendant, as was any guilty relation whatever on his part with the wife, and that the witness Tucker appears in anything but a creditable light. . . .

The serious questions in the case arise in connection with the admission of evidence of conversations between the plaintiff and his wife, wherein the latter admitted or stated that she had gone automobile riding with the defendant, had dined with him, had received flowers from him, that he was able to give her a good time and the plaintiff was not, that she intended to continue to accept the defendant's attentions and the plaintiff could do what he pleased about it, and that he was distasteful to her.

One objection to the evidence of these conversations, which may as well be disposed of at the outset as involving the most elementary principles of evidence, is that they were had without the presence of the defendant. The answer to this objection is that it is wholly immaterial whether the defendant was present or not. The competency of evidence of declarations or statements by a person other than the party to the action against whom they are introduced is not affected merely by the latter's presence or absence. If the evidence be not competent if the party against whom it is sought to introduce it was not present when the statements or declarations were made, no more is it competent if he were present. There are apparent exceptions to this, but they are only apparent and not real exceptions. One instance is that when the party to the litigation was present and his conduct in response to the declarations or statements of others or his replies to them are of such character as to amount to admissions by him, his conduct, including his silence or want of action where an inference can fairly be drawn from them, or his replies, may be shown in evidence against him, and as a part of such conduct or replies the statements or declarations of others to which they are a response. But the primary thing which is admitted in evidence in such a case is the party's own conduct or statements, and, unless these are of such a character as to be relevant evidence against him, the declarations or statements of others are not admissible simply because made in his presence. Another instance is where it is sought to charge a party with notice or knowledge, and for that purpose evidence is introduced of a statement made to him notifying or informing him.

The real objection to such evidence as that under consideration is that it is hearsay. The evidence was plainly relevant, that is, it tended to prove matters in issue, and was, therefore, admissible unless there is some rule of exclusion applicable to it. The only rule of exclusion to which it can be subject is the rule against hearsay. The evidence was, in fact, hearsay, both as to the past matters stated in the conversations and as to the wife's statements of her then feelings toward the plaintiff and the defendant. But the rule is thoroughly well settled that when the intention, feelings, or other mental state of a certain person at a particular time, including his bodily feelings, is material to the issues under trial, evidence of such person's declarations at the time indicative of his then mental state, even though hearsay, is competent as within an exception to the hearsay rule. In the present case the state of the wife's feelings at the time of these conversations, both toward her husband and toward the defendant, was material, and the conversations were indicative of her feelings, and this being so, evidence of them was admissible to show her then state of feelings. This much can hardly be questioned, in view of the settled character of the general rule just stated, its plain applicability to just such cases as the present, and the fact that it has very generally been so applied. . . .

The difficulty in regard to such declarations as those involved here lies in the fact that while they may be competent upon the point of the wife's feelings, they go very much further. They contain statements as to matters, such as automobile rides, dinners, flowers, and attentions generally by the defendant to the wife, as proof of which the statements are not within any exception to the hearsay rule and are wholly incompetent. The situation is intensified by the fact that those matters are themselves material to the issues, and, if true, very detrimental to the defendant, so that the admission of the evidence involves the placing before the jury of evidence tending to prove matters in issue, for proving which such evidence is not competent, and the proof of which is very prejudicial to the party against whom it is introduced.

Nevertheless, it is clear enough that the evidence, competent for the purpose of showing the state of the wife's feelings, is not rendered incompetent by the fact that it also tends to prove other material matters, to prove which it is not competent. The rule upon this point, which is one of well-nigh every-day application in actual trial, is thus stated by Wigmore: "In other words, when an evidentiary fact is offered for one purpose, and becomes admissible by satisfying all the rules applicable to it in that capacity, it is not inadmissible because it does not satisfy the rules applicable to it in some other capacity, and because the jury might improperly consider it in the latter capacity. This doctrine, although involving certain risks, is indispensable as a practical rule."

Cripe v. Cripe, is an illustration of this. A father was sued by the wife of his son for the alienation from her of the son, and at the trial the following question was asked of the father as a witness: "After the marriage of your son and daughter, and before Dolly [the son's wife] left the ranch at Huasua in August, 1911, did your son ever tell you that Dolly drank to such an extent that he could not control her, or did he ever tell you during that time that she abused him so bad that he could not live with her?" It is plain that as to the facts that the wife drank to excess and abused her husband, so that he could not live with her, the evidence was hearsay, was not within any exception to the hearsay rule, and was wholly incompetent, and at the same time those facts were material to the case, and, if true, very detrimental to the cause of the wife, so that the introduction of the evidence would be very prejudicial to her as to facts which the evidence was wholly incompetent to prove. Nevertheless, the question was held to be proper, and the refusal of the trial court to permit it to be answered, reversible error, on the ground that the testimony which it called for was competent to show the state of the son's feelings.

In holding that such evidence is admissible, we are not unaware of the fact that there are decisions to the contrary, and in particular that so far as the testimony actually excluded by them is concerned, Humphrey v. Pope and Barlow v. Barnes are of this character. But in neither of these cases is the point discussed that declarations of the alienated spouse are admissible as competent evidence of his or her feelings at the time, and if they are to be taken as holding that such evidence is not competent for that purpose, they are directly contrary to Cripe v. Cripe, where the point was considered and decided. If Cripe v. Cripe is not to be taken as having fixed the law of this state upon the point, from which Humphrey v. Pope, and Barlow v. Barnes inadvertently depart, the situation is at least one of conflicting decisions, where we are now at liberty to determine which is correct and should be followed. In this situation, there is little question but that Cripe v. Cripe should be followed. It is in accord with the great weight of authority and is but the application in this particular class of cases of a general rule of evidence, thoroughly well settled and applied in every kind of case, civil and criminal. One of the most frequent applications of it in civil cases is the admission of declarations by a testator when his mental capacity or his feelings are material. . . . A notable instance of its application in a criminal case is Commonwealth v. Trefethen, where upon a trial for murder a statement of the decedent, a young unmarried woman, made shortly before her death, that she was five months pregnant, was held admissible for the purpose of showing that she believed this to be her condition and therefore had a motive for committing suicide. Upon the point that such evidence admissible to prove one fact is not rendered inadmissible because tending to prove some other fact, to prove which it is not competent, the court said (page 187): "The most obvious distinction between speech and conduct is that speech is often not only an indication of the existing state of mind of the speaker, but a statement of a fact external to the mind, and as evidence of that it is clearly hearsay. There is, of course, danger that a jury may not always observe this distinction, but that has not availed to exclude testimony which is admissible for one purpose, and not admissible for another to which there is danger the jury may apply it."

The rule, then, is that the admissibility of such evidence as that under discussion, admissible because competent as to one point, is not destroyed by its incompetency as to other points which it yet logically tends to prove. The danger, however, of the jury misusing such evidence and giving it weight in determining the points as to which it is incompetent, is manifest. In such a situation, as Professor Wigmore puts it immediately following the quotation already made, "the only question can be what the proper means are for avoiding the risk of misusing the evidence." Answering this question, Professor Wigmore says: "It is uniformly conceded that the instruction [to the jury] of the court [that the evidence is competent only as proof of one point and must not be considered as proof of others] suffices for that purpose; and the better opinion is that the opponent of the evidence must ask for that instruction; otherwise he may be supposed to have waived it as unnecessary for his protection."

The general correctness of this statement cannot be doubted. But we doubt if the learned author intended to say more than that the opponent of such evidence is always entitled to such an instruction for his protection, if he asks for it, and that generally it will suffice. But it is not difficult to imagine cases where it would not suffice, and the opponent could justly ask for more. The matter is largely one of discretion on the part of the trial judge. If the point to prove which the evidence is competent can just as well be proven by other evidence, or if the evidence is of but slight weight or importance upon that point, the trial judge might well be justified in excluding it entirely, because of its prejudicial and dangerous character as to other points. A number of the authorities cited by defendant's counsel are distinguishable from the present case upon this ground. This would emphatically be true where there is good reason for believing that the real object for which the evidence is offered is not to prove the point for which it is ostensibly offered and is competent, but is to get before the jury declarations as to other points, to prove which the evidence is incompetent. The same thing would be true as to the introduction of repeated declarations, when once the point for which they are competent has been amply shown. It may also be that the portions of the declaration which there is danger may be misused by the jury are not so interwoven with the balance of the declaration but that they can be disassociated from it without impairing the meaning or effect of the declaration for the purpose for which it is admissible. In such a case, evidence of such portions of the declaration may be excluded on proper objection, when offered, if there is opportunity for such objection, or, if there is not, may be stricken out on motion subsequently. The point of the matter is that the opponent of such evidence, so likely to be misused against him, is entitled to such protection against its misuse as can reasonably be given him without impairing the ability of the other party to prove his case, or depriving him of the use of competent evidence reasonably necessary for that purpose.

The question, then, in the present case in connection with the evidence of declarations of the wife reduces itself to a question as to whether the defendant was properly protected from the danger of this evidence being misused by the jury, and considered by them as proof of matters other than that for proving which it was admitted. We think that there can be no doubt but that the defendant was not properly protected in this respect.

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[EDITOR’S NOTE: THE COURT HELD THAT THE INSTRUCTIONS GIVEN TO THE JURY WERE INSUFFICIENT AND NOT TRIVIAL]

Judgment reversed.