Brown v. Brown

53 Mo. App. 453 | Mo. Ct. App. | 1893

Ellison, J.

— Plaintiff’s petition is for a divorce •from his wife. The grounds alleged are her adultery .and indignities which rendered his condition intolerable. The indignities charged are that she permitted Dorsey, an unmarried man who lived in the neighborhood, to secretly visit her and for a long period of time unknown to her husband to bestow upon her the endearments and attentions of a lover. The trial court found for plaintiff on both issues.and likewise gave the custody of the minor children to plaintiff. Defendant has brought the case here.

There was admitted in the evidence for plaintiff over the protest and objection of defendant certain letters produced by plaintiff written by defendant to him. The rule in this state seems to be settled that in an action for divorce the husband and wife are competent witnesses; but that they cannot give testimony of communications made by one to the other. Moore v. Moore, 51 Mo. 118; Berlin v. Berlin, 52 Mo. 151; Miller v. Miller, 14 Mo. App. 418; King v. King, 42 Mo. App. 454; Ayers v. Ayers, 28 Mo. App. 97. We see no reason why a communication which a husband or wife cannot testify to should not apply as forcibly to a letter as to a conversation. There can be no reason for distinguishing between what is spoken by the tongue and written by the hand. Either is a communication, as that term is understood in the law on this subject, and the law should prevent the uncovering of either. Husband and wife should be as free to write to each other as they are to talk together. No motive of policy can apply to the one mode of communication that is not equally applicable to the other. This is the view taken by the supreme court of Texas under a statute somewhat unlike ours, but in this respect applicable. Mitchell v. Mitchell, 80 Tex. 101; Stanford v. Murphy, 63 Ga. 410. But it is insisted that, as it appeared that these letters were not sent by defendant directly to plaintiff, but were sent to their oldest daughter to be by her delivered to plaintiff, they were not private comrmmications. It does not appear that the letters were unsealed when enclosed to the daughter,; and, if it did so appear, we would not assume that they were intended for her to read. Whatever doubt there may be in such case should be resolved in favor of the inviolability of the communication. Sec. 113 Mass., 157. A conversation between husband and wife might be overheard by others, yet this would not justify the admission of testimony from either of them as to such conversation. So a letter from husband to wife might be opened or surreptitiously read by third parties, but it would scarcely capacitate the otherwise incapacitated parties to testify as to its contents. We think the point not well taken.

This view of the law on this subject does not militate against the proposition that the rule incapacitates or disqualifies the witness and not the communication per se. If the conversation between the husband and wife be overheard, accidently, .or by persons secreted for the purpose, such third parties may give it in evidence. Gannon v. People, 127 Ill. 518; State v. Center, 35 Fert. 378; Commonwealth v. Griffin, 110 Mass. 181; Wharton on Criminal Evidence, sec. 398. So if a letter, written by one to the other falls into the hands of third persons and' it finds its way into the case through such third persons, it is competent. When a letter falls “into the hands of a third person, the sacred shield of privilege” is removed. State v. Hoyt, 47 Conn. 518, 540; State v. Buffington, 20 Kan. 599. It is, however, said that letters between married parties have in some instances formed the chief evidence upon which divorces have been granted in this state, and we are cited to Moore v. Moore, 41 Mo. App. 176; Messenger v. Messenger, 56 Mo. 335. But in these cases there was no objection made to the introduction. In the Moore case the husband introduced the letters and the wife appeared willing to abide by the case they made. The attention of the court was, for this reason, not called to the question. Our conclusion is that the objected to letters should not have been admitted.

As to the merits of the case, we have, after a careful consideration of the testimony, determined that the trial court should not have .found defendant guilty of adultery. Aside from the letter to Josephine Dorsey, there is no substantial evidence upon which to lodge the conclusion of guilt. Including the letter there.is proof of frequent visits made to defendant by the party charged in the petition; that these visits were without the knowledge of plaintiff, and that on such occasions defendant suffered him to make protestations of his love for her; that these visits were numerous, though at intervals, during a period of two years. It was further sufficiently shown that these visits were made with her approval, at least with her passive toleration. The evidence, we concede, sufficiently discloses an opportunity to commit adultery and a disposition on the part of Dorsey to commit the act, but we are not satisfied that it shows a disposition upon the part of defendant. The respective counsel have collected a-number of authorities upon the sufficiency of the proof in such cases, which will be found in their briefs.

This evidence, while not supporting the charge of adultery, is abundantly sufficient to support the second charge in the petition as to indignities, rendering the condition of plaintiff intolerable. Defendant’s letter to Josephine Dorsey can establish nothing less than this. In that letter she admits, in substance, that Dorsey was her lover and that she received his attentions and protestations of love for her. Her letter shows that she became unmindful of the duty she owed her husband and the regard she should have entertained for him.

The court awarded the custody of the three minor children to plaintiff. The facts concerning this branch of the case are these: The children are girls, aged fifteen, six and four years respectively. The oldest remained with her father at the separation, bnt the two youngest went to Ohio with their mother, with the consent of the father. The disposition of the children seems to have been the result of a mutual arrangement. Plaintiff purchased railroad tickets for the two youngest, so that they could accompany the defendant. Since the two children were in Ohio at the commencement of this action and have remained there since then, defendant contends the judgment awarding the custody is void for want of jurisdiction. This contention is combated by plaintiff. . We will not enter upon a discussion or decision of the question, since, under the circumstances surrounding the case as shown by the evidence, we have concluded to leave the children as-these parties themselves placed them. ■ The case shows, without contradiction, that the defendant always gave anxious care and attention to the children, to their education, dress and deportment. The tender age of the two now with her calls for her continued attention. The plaintiff himself must have thought that they should be with her and so we will leave them as we find them placed by’ the parties, not making any order concerning them. In such cases the future welfare of the children as it may or may not be altered by shifting circumstances will determine in whose custody they should be kept or placed.

The judgment of the circuit court will, therefore, be reversed and the pause remanded with directions to-the circuit court to render a judgment of divorce on account of the indignities charged in plaintiff’s petition,, and without any order in regard to the custody of the children.

All concur.