51 Pa. Super. 39 | Pa. Super. Ct. | 1912
Opinion by
1. Although this defendant was named in the libel in divorce as a person with whom the respondent had committed adultery, he was not a party to that suit in any sense of the term. He was simply a witness. “Parties in the larger legal sense are all persons having a right to control the proceedings, to make defense, to adduce and cross-examine witnesses, and to appeal from the decision if any appeal lies:” 1 Greenleaf on Evidence, sec. 535; Walker v. Phila., 195 Pa. 168. This defendant stood in no such relation to the divorce case, and it is an obvious principle of justice, that no man ought to be bound by
2. The next question to be -considered is as to the competency of the plaintiff in such action to testify in chief to facts occurring before the dissolution of the marital relation by divorce. Although the plaintiff in this case was properly permitted to testify, in rebuttal, in contradiction of some of the witnesses who had testified against him, the learned court held that he could testify, in chief, only to the fact of marriage. We cannot fully concur in this view. The common-law rule which excluded the husband and wife from giving evidence either for or against each other, is founded partly on their identity of interest, and partly on a principle of public policy which deems it necessary to guard the security and confidence of private life: Hitner’s App., 54 Pa. 110. “And,” said Justice Read in that case, “this extends to cases where the marriage is dissolved by divorce or death, and is not confined to confidential communications.” But in the later case of Peiffer v. Lytle, 58 Pa. 386, the same learned justice explained and distinguished Hitner’s Appeal, and recognized and approved the doctrine of Cornell v. Vanartsdalen, 4 Pa. 364, which doctrine has been recognized and approved in many later cases, amongst which may be cited: Robb’s App., 98 Pa. 501; Dumbach v. Bishop, 183 Pa. 602; Homan v. Homan, 12 W. N. C. 86; Strause v. Braunreuter, 4 Pa. Superior Ct. 263; Hood v. Prudential Ins. Co., 22 Pa. Superior Ct. 244; Hayes’s Est., 23 Pa. Superior. Ct. 570. Thus, in Robb’s Appeal, Justice. Sterrett said, the better and more generally received opinion is that the disqualification which remains after the dissolution of the marital relation!, the witness being otherwise competent, is restricted to communications of a confidential nature, and does not embrace ordinary business transactions and conversations in which others
3. The Act of May 8, 1907, P. L. 184, provides that in all civil actions brought by the husband, the wife shall be a competent witness in rebuttal when her character or conduct is attacked upon the trial thereof, but only, in regard to the matter of her character or conduct. The plaintiff’s divorced wife was called as a witness by the defendant and was permitted to testify to matters of a confidential nature, tending to repel the attack upon her character and conduct. As to such matters she was undoubtedly a competent witness, but she was so only by
Some other minor questions are raised by the assignments of error, which we have duly considered but do not deem it necessary to discuss in detail. We have stated our views upon the main questions, and the grounds upon which we conclude the case must be sent back for retrial. The first, sixth and eighth assignments of error are sustained. All of the others are overruled.
Judgment reversed and venire facias de novo awarded.