*1 February January 16; Argued reversed McKINNON v. CHENOWETH (155 944) P. (2d) *4 Justice, Before Chief and Rossman, Belt, Bailey, Associate and Justices. Lusk Hay, appellant. Fenlason, of Portland, C. O. for (Senn Recken, L. A. of Portland &Recken and Fred brief), respondent. all Gronnert, on the Portland, LUSK, J. damages
This is an action to recover for the aliena- plaintiff’s tion of the affections of the wife. A judgment trial in a resulted verdict for the de- appealed. and the fendant, has plaintiff, A. McKinnon, The G. and his wife, Vivian, January February, were 29, 1939. married he Ray Chenoweth, both skilled me operators, partnership chanics and machine formed a engage manufacturing, leasing in the business of disposing improved of truck otherwise cranes of type perfected. which McKinnon had The success of profit their venture is indicated the fact that the net partnership year before taxes for the 1942 partnership early $112,678.69. was dissolved February, separa-. at about the time of final plaintiff and ticn of the his wife. separations.
There were several such The first oc- curred on when Mrs. McKinnon, October over
79 plaintiff’s protest, the left their in Portland and home went to San Francisco. He heard from her twice joined and on 12 mail, November her in Fran- San they They cisco and were Port- reconciled. returned to having agreed they go land, first that later would back spend Bay plaintiff and some in the area, time having partnership business there in connection with Company machines under lease the Bethlehem Steel trip in Modesto. Their was to be in nature of a they Modesto, vacation. About November 20 went stayed night, apartment one there and then rented an in San Francisco. 12 On December Mrs. McKinnon plaintiff apartment. ordered the out of the He re- turned to Portland, and about December 18 went to apart- Oakland. On December 24 he saw his in her wife they again ment in Francisco, San and were reconciled spent night together 25th the Oak- agreed land Hotel. It ivas betAveenthem that on the following day go pack she was to to San Francisco and belongings they living quarters her would find Accordingly, Modesto. on the 26th, Mrs. McKinnon arriving Aventto San Francisco, but, after tele- there, phoned plaintiff changed that she had her mind go would to Modesto Avithhim. She came request, plaintiff back to Oakland, and, at her took depot, they parted. her to the bus where Thereafter plaintiff to find endeavored his wife. He enlisted help of Mr. and Mrs. It. E. the former Steelman, employe partnership an in Modesto, and on the evening of December Mrs. Steelman reached Mrs. by telephone apartment McKinnon at her Fran- San Thereupon plaintiff cisco. and the Steelmans went to San Francisco and there was another reconciliation. Mrs. McKinnon then went to Modesto with the Steel- apartment mans and rented where and her hus- she February stayed part until latter band 1943. January plaintiff trip made a to Portland from February they and' Modesto, saw on partnership. their dissolved returned to February day Modesto on and on that his wife left finally, informing him Mm that “there was another picture”. man in the pro March with was served
On *6 brought in a divorce his he a wife; cess suit filed granted May cross-complaint a on 26, and was divorce January 1943, on de meantime, 21, 1943. the the suit for and on divorce, fendant’s wife had filed Febru ary granted a she was decree. any in the little record of acts of
There is evidence plaintiff prior separation to the first of defendant the the on which were cause his wife October estrangement. subsequent M But evidence of the their jury a the was sufficient to make of defendant conduct question. 3 and December 27, Between November while many California, the defendant McKinnon was Mrs. telephone long Mrs. McKinnon distance called times engaged in conversations con Portland and from day length. December the on 12, which On siderable plaintiff out their San McKinnon ordered Mrs. apartment, defendant arrived San Francisco stayed at a until about December and, Francisco, period plaintiff During in Oakland. hotel in Portland. Angeles Los the defendant from December
On plaintiff telegram at the Oakland Hotel sent a busy reading will leave as follows: Circuits in Oakland ‘ day days”. couple the same defendant On L. at the of K. Hotel registered name Jensen under the north miles of Los is 363 in San which Jose, St. Claire Angeles Francisco. in- and 48 miles south of San He join clerk that his him formed hotel wife would suggestion, at the clerk’s added the words later, and, registration. There is “and Mrs.” to his evidence finding support on December 25 and three a once again on 26 and December times on December Mc- name of called Mrs. Jensen, under the defendant, by long apartment in San Francisco distance Kinnon’s telephone on It was Decem- from Hotel St. Claire. carry her ar- that Mrs. McKinnon refused to out
ber 26 go rangement with her husband and dis- to Modesto evening appeared 27th. until the The defendant him at the St. that woman was with Hotel testified that it not his Jose, in San but wife. Claire objection, plaintiff that after testified, without his him seen told that she had the defend- divorce his wife ant at Jose. San foregoing could have
From evidence intending to meet Mrs. Mc- that the found had as he did Jose, Kinnon in San wired movements, as to his in order to deceive *7 and meet Mrs. McKinnon San Jose and that he did carry agree- out her in her failure to instrumental go on Decem- to Modesto her husband with ment 26. ber McKinnon and the de- that Mrs. evidence
There is T. K. agreed use the name that he would fendant in communicat- Lawson the Vivian and she name Jensen during they and that ing so, that did and each other with of'January, numer- defendant, the on month the length, talked with at considerable and occasions ous telephone long from distance the over Mrs. McKinnon points. other and Portland
S2
It that was the defendant’s theory the breach be- tween the and his wife was about plaintiff brought his and her, mistreatment of other misconduct, and evidence have was received which would warranted a that that the finding controlling cause of their estrangement. further may
Such statement the evidence as be will necessary found be made in the course of our discussion of the error. assignments
LUSK, J. error the refusal of the assigns court to instruction: give following that
“The further instructs Court maintain an action alienation of affec- order to not tion, prove by it is that necessary plaintiff time, love and had, he at any evidence that law, a ’because, of his under wife, affection has no and unasked voluntarily right stranger and unity and disturb concord interfere with or off relation or interfere cut any of the domestic of a future affection springing chance or possibility had the The between the two spouses. up comfort, protec- companionship, to seek right his wife without inter- tion, society aid even if should you an outside person; ference of the home case, this find, from evidence unpleasant, and his wife was life of the plaintiff not the defendant justify would nevertheless in this plaintiff’s with the voluntarily intermeddling and if intermeddle, he did if so affairs, domestic instructions evidence, under the find from the you wife have would court, plaintiff’s of this it had been for him if remained with lived and influence of de- conduct and acts, the wrongful acts, conduct if any, fendant, naturally were any, if influence to causing plain- or contribute to cause calculated
83 apart separate and from the remain tiff’s wife your plaintiff the then verdict be for and so will did, against plaintiff and the defendant.” right of of action for alienation of the The basis explained Mr. thus Justice Harris affections is Smyth, Pugsley 194 P. 459, 98 686: 448, v. Or. society, conjugal spouse to the
“Each is entitled A of third and assistance the other. affections, intentionally person or one alienates entices who generally spouse other is liable to the from the Loss of service right is not the basis of the latter. necessary pecuniary not a ele- for loss is action, of right upon loss to recover is based but the ment; ” of consortium. right By meant “the to the con is consortium company, coopera jugal fellowship to her wife, of the Bigaouette conjugal every relation”: v. and aid tion quoted Rep. 307, Am. 124, Mass. 45 Paulet, 123, 134 approval 12 Siddal, 280, 284, v. in Jacobsen Or. with Elling Rep. v. Blake-McFall Am. 360. See 7 P. P. 12 C. 42 C. 57; 532; S., J. J. Co., 91, 94, 85 Or. § 665. "Wife,319, Husband and Dodge App. D. 8 Ann. Rush, C. Shepard, speaking Mr. Chief Justice Cas. said: court, gist affec- action for the alienation of of the
“The consortium, is, to be the loss tions is said company, co-opera- conjugal fellowship, loss husband or wife. Loss con- and aid of the tion, consequence injury, the actionable sortium aggrava- is a matter of of affections and alienation (Citing authorities) . tion recovery necessary plaintiff’s it is “While defendant’s mis- show that an action to such loss of con- cause effective conduct necessary that it shall have been it is sortium, *9 84 Any unhappy may
the sole cause. relations that have plaintiff existed between the her husband, not by may of the defendant, caused the the conduct affect question damages; they of but are in no sense justification palliation a duct. or con- defendant’s ” authorities) (Citing requested in instruction is the same substance approved App. in Mo. Pool, as one v. 182 13, 167 Claxton and embodies the correct rule of law as it has 623, S. W. by the courts in numerous decisions. been enunciated 42 P. 7 Warwick, 480, 42, v. Wash. 85 Ann. Cas. Morris Atl. Ulizio, 631, 204; v. N. Mis. 129 687; Mulock 3 J. Dey Dey, 110 Atl. v. 342, v. 94 N. L. Fratini 703; J. Rep. Atl. 44 Caslini, 252, 843; 66 29 St. 273, Vt. Am. Hadley P. Moelleur, 30, 419; v. 55 Mont. 173 Moelleur Dodge supra. Heywood, Rush, 121 Mass. v. See 236; v. (4th Ed.) Cooley § 2 30 Husband 5, 167; J., on Torts C. § S., 42 C. J. Husband and Wife, 1126, 985; Wife, § § and Wife, Am. Husband 322, 672; Jur., 126, 524, § Closset, 118 244 P. 537. In Disch v. Or. following quoted approval the from 71, this court with § 1126, 984: Wife, C. Husband and J., merely not will be exonerated “The defendant injured spouse, blamable than the he is less because liability by preventing a reconcilia- incur and will estranged through spouses the mis- tion between one”; conduct prior § it said that ibid., is where cited as well interposed as a defense cannot be affection
lack of caused or enticement or the alienation action by or conduct. While brought acts defendant’s about they conflicting apparently decisions, a few there are weight authority represent opinion, in our not, do right the basis with be reconciled and cannot Pugsley Smyth, this court as stated of action supra. ap peculiarly requested was instruction
That the pre apparent, issue was for the plicable to this case any affection for had McKinnon Mrs. sented whether being would capable and the lost, her husband notwithstanding finding that, have been warranted lasting wanting, may recon have been affection such had defendant effected have been ciliation would upon It pressing her. persisted his attentions requested theory, instruction, this covered submitted entitled have which *10 by just jury was entitled defendant court, the the the recovery if be no there could to an instruction that controlling plaintiff’s cause the misconduct was the own give to court’s refusal and the alienation, requested error. reversible instruction was given us have not the defendant
Counsel for question any argument of sub on the the benefit by assignment under of error law raised stantive They the de in brief that assert their consideration. that there is but we think intermeddle; fendant did not jury to that it was for did, that he evidence say the re further the fact. Counsel determine argumentative “this quested and that instruction is by gen phase the law was covered of the case and think there is no We of the court.” eral instructions suggestion. we latter, As to the merit in the former portion particular of the instruc are not referred to the point given is claimed to be court where tions reading of all the instruc a careful and, after covered, it is mentioned. to find that are unable tions, we proper in for court it will be a retrial On part on the that want of affection struct the any unhappy may relations that McKinnon or Mrs. plaintiff, her and the not caused between have existed may be considered in the conduct damages. mitigation of requested, and the court refused following
give, instructions: you case, “If find from the evidence this given you, that the affec- instructions under the plaintiff’s him and that wife were lost to tions the defendant a con- and conduct of were the acts controlling tributing then alienation, cause of the against your be verdict will the defendant.” ‘‘ you that in a case further instructs The Court necessary plaintiff to for the kind it is not of this conduct was the sole defendant’s show that affections, but alienation of his wife’s cause of the you from the if find evidence sufficient, it is and conduct of the defendant were that the acts case, a contributing cause of the alienation.” connection, instructed, further this
“You are you that the defendant is find from evidence if the entire plaintiff’s alienation of affection of
cause of the accordingly; if he shall answer wife, only partially it, the cause of then he defendant although accordingly, de- lesser shall answer wholly responsible.” gree than if he were *11 jury the as follows: The court instructed under you case, in this evidence find from the “If you, given of that the affections the instructions the acts and that plaintiff’s him, lost to wife were and intentional defendant were of the and conduct and done controlling alienation, of the cause the your injure ver- then intent to the with against plaintiff the de- be for dict will the person need not third The conduct fendant. third if the it is sufficient cause, but be the sole 87 controlling cause which person’s the conduct was may- although estrangement, there produced the contributing causes.” other have been refusing instruct as action in The court’s foregoing giving instruction is requested assignments plaintiff’s of one of the the basis of made entirely error committed clear that no It is error. complained giving for it is the of, instruction jurisdictions, most as of other state, law of this settled plaintiff in an action to recover for the that in order prove he must that the affections for the alienation of controlling cause of the was the conduct defendant’s may contributing although be other there alienation, sup very cited cases causes. assignment port so hold. Disch v. Clos error this Pugsley Smyth, supra, 244P. v. 111, 71; 118 set, 117, Or. p. Barber, 230, 235, 71 Or. 459; at v. 98 Or. Saxton same, Holmes, v. To effect are Aitkenhead P. 334. Hughes Holman, v. 110 Or. 268P. 8, 10, 126Or. A. L. R. It true that this P. 1108. judg instances refused to reverse court has in certain judge trial failed had where ments for the many of the de conduct in so words to instruct controlling of the alienation. cause fendant must be jury supra, told the court Barber, In Saxton necessary con that the defendant’s to show it was you if find it is sufficient “but cause, duct the sole * * * wrongful acts of the defendant were pass- contributing alienation, etc.” cause propriety the court ing upon of this instruction said: have taken as a whole “The instructions telling conduct that defendant’s effect controlling aliena- cause of the been have
must ’’ tion. *12 Pugsley Smyth, supra, (98 In the court said Or. 459): person
“The conduct of the third need not be per- it if the cause, the sole but is sufficient third controlling pro- son’s conduct was the duced cause which estrangement, although may have there contributing been causes.” other appealing assigned In that case the defendant : following giving error the of the instruction necessary, however, “It is not the actions only shall be the sole and cause of the defendant of the alienation a affections. If it is wife’s moving cause, without which the substantial alienated, have been then the would not affections damages responsible in for his con- defendant ’’ duct the matter. only the defendant made of the The criticism which ap- it failed to state that “the instruction was that pellant’s must have intentional”, actions been although general charge given court held, alleged probably sufficient to cure the the court was appropriate suggest nevertheless be it would defect, upon of intention made a retrial be element jury. to the clearer supra, an instruction there Closset, Disch v. sole cause, not have been the defendant “need
that the must answer accord- contributed, then he if he but ingly.” an instruction sub- followed This was requested language stantially of the third in the stating after court, above set out. instructions prevailing must be con- that the defendant rule 117): (118 trolling alienation, said Or. cause complained have of would instructions “The accurately of this law in accord with the more been judge had used the word circuit the learned state if ‘controlling’ language quoted in the above, but light taking charge the facts adduced, quoted a whole, as- the instructions above were *13 if at all.” error harmless, apparent,
It is therefore, that the decisions of directly opposed plaintiff’s are this court to the con given by judge tention that instruction the trial Every proper was erroneous. element of the three requested instructions was covered instruc thing say judgment tion. It is one that a will not appro be reversed because of a failure to use the most priate language in an instruction when the court can charge find from the aas whole the correct rule conveyed jury. of law has been quite to the It is thing say give a requested different that failure to instruction appropriate which does not use the most languáge and, is indeed, erroneous, as are the second — requests ground third under consideration —is for notwithstanding reversal, formed, judge that the trial has in jury of the correct rule of law and in the very words which this court has declared to be “more accurately in accord with the law of this state”: Disch supra. v. Closset, requested
The third of the instructions, to the effect if the defendant is the entire cause of accordingly, alienation he shall only answer if and he is partially the cause of it shall accordingly, he answer although degree, to a lesser opin is not the law, our ion: supra, far so as Disch v. Closset, seems to approve such- an instruction that case is overruled. question The instruction damages confuses with that of argument the cause of the alienation. The part plaintiff-invokes it on of the some doctrine of comparative analogy fault in to the doctrine of com- negligence
parative in another branch of the law. We have been referred no decisions or text enunciat- theory ing such a doctrine. Under this rule controlling would be thrown into discard cause plain- and the would be authorized to find for the if the defendant’s conduct contributed tiff some though degree controlling to the even alienation, plaintiff. That cause was the misconduct of would every in this state on be to overrule decision exception subject, possible v. Closset, with Disch scarcely supra. it case, But even in that can be said approval expressed court that the instruction light question. court said that “in the taking charge as a adduced, whole, facts quoted harmless, above were if error at instructions any, approval, if half-hearted, all.” This but *14 rash contend that court would have it to the would be give such instruction erroneous the refusal to held ground for reversal. repeating it will that In this bear connection palliate plaintiff not the husband will misconduct although unhappiness enticer, the domestic offense of may brought by about the discord, damages. mitigate the serve assignments of error next to be considered The sustaining upon ruling of the court are based by plain objections to evidence offered defendant’s by Mrs. made Mc statements or declarations tiff of They presence of the defendant. out of the Kinnon general com classifications. Some were into two fall during by the mar Mrs. McKinnon made munications being present plaintiff riage one , else — —no by plaintiff’s sought proved testi to be and were parties. mony. to third made were declarations Others As to former it is clear that the court ruled correctly, by Pugsley Smyth, supra, for it is settled v. pp. § pro- 468-480, 98 Or. that L. 3-104, O. C. which A., “during vides neither husband or his wife marriage (may) or afterwards, be, without the consent any other, as to examined communication made by during marriage”, applies one to the other in actions for the alienation of affections and is intended all such communications, cover whether confidential or otherwise, unless consent the communication expressed implied. be revealed is either or upon for Counsel relies Coles v. Harsch, quotes following P. Or. from opinion page report: that case at 26 of the may pardoned observing, “We be that it is policy difficult to understand how the of the law by closing spouse is facilitated the mouth of either charged an action this kind where an intruder is having disrupted very with that which is the founda- tion of the state, the home. It would seem rather though policy of the law should demand possible inquiry charges.” the widest into such foregoing harmony dictum seems to be out of subject Pugsley with what said on Smyth, support but the decision plain- itself does not position. presented tiff’s The situation the record in Coles v. Harsch was the converse of that in the instant There, case. evidence of communications made the wife to her husband, who was the in an action for alienation of affections, was received with- *15 any objection appeal out judg- whatever. On from a inment favor of the the defendant contended reception testimony that of this was reversible privilege error. The court held that the was that of and did not con- and his former wife affecting him and that no error cern privileged communications committed when (129 31). Inasmuch as other errors were revealed Or. necessitating on the had been committed a reversal upon “the court the new trial it added trial, privileged if communications must these exclude any privilege court possessor action; invites such of the privileged may very properly communications exclude appears upon it that a witness when motion, its own testify protected fact to some is about to without Ency. having privilege been made: of the waiver party plaintiff, who case the Ev. 200.” this testimony, complaining it because was offered the court was au- v. Harsch excluded. Under Coles communications, of such thorized to exclude evidence notwithstanding Mrs. McKinnon made fact that nothing objection There is to its admission. no suggest refusal of the court to that the case incompetent statute makes which the receive evidence regarded as error. should be suggested Mrs. McKinnon waived It is during privilege courtroom she was in the because But, it. under the terms and did not claim trial required privilege, claim the statute, she was per husband was not “consent” her her for, without concerning the communications. mitted to be examined part not amount to a her did silence on And mere supra, p. Smyth, Pugsley 465; 98 Or. at waiver. § 631. Witnesses, J., 70 C. admissibility question of the dec depends persons to third McKinnon of Mrs.
larations any fall upon within not such declarations or whether excluding hearsay exceptions evidence. to the rule
93 general In this class of “the cases rule is that declara deserting though tions of the wife, made in the absence are available as evidence in behalf injured prove husband to state the affec tions of the alienated her wife, and motive, the effect produced upon her mind the conduct of the defend notwithstanding ant, such declarations involve state spoken by ments of acts done or words the defendant.” nothing “the If, however, utterance is but a recital or narrative of what has been done or said, and is not the spontaneous and natural manifestation of the then existing inspired produced emotion which and it, then it does come within the reason of the rule and ’’ Pugsley Smyth, supra, is not admissible. v. 98 Or. at p. Mumper 462, and cases there cited. See, also, (2d) Webster, 137 Or. P. 554,557,3 A. R. 753,82 L. 222; supra, p. v. Harsch, Coles 129 at 21; Or. Disch v. Clos supra, p. set, atOr. 114; Coates v. Slusher, 109 Or. 222 P. 612, 623, 311; v. Johnson, Cole Or.
205P. 282. application foregoing principles
The in- following volved the instances: testifying Inez witness, Steelman, her telephone conversation with Mrs. McKinnon on Decem asked to ber was state what was said. Defendant’s objection question plain to the was sustained, prove tiff offered that Mrs. McKinnon said over telephone “that she wanted come back to Mac have if Mac would her.” We think that the evidence although, admitted, should have been in view of the go fact that it was that she did shown back to her probably husband, its exclusion was harmless and not reversible error. a con that she had testified
Inez Steelman during that the the time McKinnon with Mrs. versation living Modesto, at were and McKinnons Steelmans ‘ during you or not, whether state asked Can was respect anything to Vivian said with was conversation, ’ objection ground having An on the in San Jose?’ been leading suggestive question *17 proof as follows: was The offer sustained. nor that she didn’t love told her Vivian “That Chenoweth, and for did love care but Mac, care for in had met with Chenoweth Vivian, that she, and arrange promised to so he had and that Jose, San him, between Cheno- a divorce there ivould be that weth, Vivian, they, and Chenoweth and that wife, and his get agreed divorce, to break and should that Vivian steps up take Chenoweth, would he, that the and McKinnon, Mrs. partnership she, and that marry.” later Chenoweth, would leading, question opinion not but was In our proof only have portion which would of the offer any was “that circumstances under admissible been nor for Mae, didn’t love care her that she told Vivian and that would Chenoweth”, and care love but did question. responsive re- The been have past in- events and a narrative all was mainder admissible. during the time testified
Inez Steelman time living from they Mrs. McKinnon Modesto in were Lawson at to Vivian for mail addressed asked to time post delivery office, and that general window present Mrs. McKinnon when she was on occasion one (the addressed, and that she wit so a letter received She ness) recalled its substance. letter and read the objection please?” you An tell, “Will asked was then proof question offer of and the sustained was to the testify she in that letter —that will was: “She expressed read letter —and that it rather and love Lawson, affection to Vivian Vivian told her that objection from was Chenoweth”. The to the testi- mony properly proposed sustained because the evidence that “Vivian told her that that was from hearsay. purely Beyond Chenoweth” was that no proper foundation was laid for the introduction of secondary evidence. Vortman, Carl testified that in witness, year
forepart of the 1943 he his in wife were Mrs. Imperial McKinnon’s room the Hotel Portland engaged long- at a time when Mrs. McKinnon in a telephone distance conversation which she was heard working”, during shovels to ask “where the were and, “honey” the conversation, the course of used the word darling”. “goodbye, at its close said The witness anything, if “Now, what, was asked did Vivian state, objec after conversation was terminated?” An this prove sustained, tion and the offered talking that Mrs. McKinnon said that she had been Ray Chenoweth, and that did not let Vort she *18 Ray Ray talk to because had instructed that maris present he to talk no one when called to her. there be ruling- obviously correct, was for here was no The mind, manifesting expression spontaneous a state things that had occurred and a mere recital but spoken. had been words that right in a like reason the court was exclud
For testimony sought ing from the to be elicited witness her that a Mrs. McKinnon told new that Inez Steelman jewelry wearing piece McKinnon which Mrs. was by given defendant as a to her Christmas was present. governed by a instance is somewhat
The next that on There evidence November rule. was different registered day at defendant was for one .the 15, 1942, Hotel Portland. Roosevelt- Inez Steelman testified on.that.day Mrs. she drove downtown McKinnon request. was asked: “and did latter’s She she at the ’’ objection -ques you % An to the her tell where take . was but witness sustained, tion nevertheless - going she was to the answered: ‘‘She said Roosevelt a to see friend.” On motion.the hotel answer:was . that the We think answer should stricken have.been permitted the rule laid down stand, under State P. Ann. Cas. 1918A Farnham, 417, 82 Or. person question is a did “that, when the whether 318, declarations, written, oral or made act, a his certain alleged prior to have the time he done about it, that he to do are act, to the intended effect original under evidence, if made admissible circum any suspicion misrepresenta precluding or. stances (3d Ed.) Wigmore § on 1725, tion.” See Evidence -in the notes. numerous cases cited One of the jury’s questions in this case for the consideration was meeting clandestinely the defendant was whether with going McKinnon, and her declaration that was Mrs. she a Hotel, friend Roosevelt made at time to meet a at the guest a at hotel the defendant and under when believing offered no reason for circumstances which truthfully disclosing intention, her that she was upon ruling The of the court ex issue. evidence cluding testimony opinion, our was, erroneous. manager in Portland, of the Palace Hotel plaintiff, produced identi called as witness showing registration that on various cards dates fied. April 1942, “T. K. 27, and October between registered Jensen, hotel. L. K. at that it will Jensen” used defendant when was the name recalled, be e n *19 registered Jose, i at Hotel St. San h Claire and T. California, on December K. Jensen which and Mrs. the name the defendant McKinnon was agreed in would be used them their communications It that on some of with each other. was shown days registered K. when T. Jensen was at the Palace city, plaintiff out Hotel the and that the registrations last of such was on October Mrs. when Fran- McKinnon left her husband and went to San registration cards cisco. The did bear name any hotel. The admitted in defendant effect signed K. with the name T. Jensen and he them staying at v/as some hotel in Portland on the he dates they bore, but claimed that he did not which know or could not remember name hotel. The registration offered the cards in evidence, ruling the court refused to them, but receive assigned error. is question rejected whether the evidence had relevancy depends upon
legal whether, view of the circumstances mentioned and the fact further Portland, Chenoweth had home inference would have been warranted that the defendant and Mrs. Mc- clandestinely Kinnon met at the Palace on Hotel question. suspicion might Whatever occasions be we evidence, think that it created is so remote speculative ruling complained in character that'the any was not reversible error. There is no evidence of McKinnon was ever in kind that Mrs. Hotel, Palace registered be if assumed that the and, it defendant there under an alias with some unlawful or immoral design, might perhaps as well it be assumed that some than woman Mrs. McKinnon other was involved. any only registra- event, the evidence excluded was the and the had cards, tion before it the fact that days city when the on out of the certain *20 register in defendant did fact under an at the alias For Hotel. whatever it the the Palace was worth, the had benefit of this evidence. question privileged When of communica the husband and wife first arose and the tions between objection question a court sustained the defendant’s to regarding put made to the statement to him by marriage, during plain his wife the counsel for the requested jury “inform tiff the court to this as to the applying of to the oral communications rules evidence between husband and wife”. The court’s denial this of assigned application support is as error. It is in said jury assignment that “the should been have enlightened, kept not in the dark.” can no We see duty in this contention. It is the of merit whatever charge “enlighten” jury its to court in to the as the legally applicable to received, and, law evidence the jury the at the instances, to instruct the time of some purpose reception for as to some limited of evidence jury’s it is con it But none which is admitted. why so, If it the court excludes evidence. were cern privileged only communications, not in the case of then testimony proffered every other instance where but in upon rejected, to be called to state is the court would rulings. jury accom This would reasons its tendency plish nothing good, and its would be of jurors. bring No of in the minds about confusion contention, authority plaintiff’s for the has cited been any exists. doubt that and we plaintff to the stand called his first witness As proceeding him, examine before defendant, and, following court: to the statement made please record “May I court, desire it party wit- called as is adverse that this show rights accorded under the ness and lie called I ask now to the Court 4-709, amended, Sec. I don’t vouch section, of that instruct, for view credibility nor am I of this witness bound ’’ testimony. by his The court ruled as follows: “I will not at this time advise the testimony given
counsel’s client is bound by words jury, I this witness. will instruct in the statute, that he does him. not vouch for I matter with if offered, arises, if occasion will, consider, impeachment witness accordance *21 provisions later, statute. I will, during trial case, of this reconsider, at counsel’s request, suggestion to instruct in ac- present request, cordance with his to is, by testimony that his not effect is bound client give oppor- of this witness. This will an court tunity fully to become advised as to whether or not ruling such exception.” is in I order. will allow an plaintiff assigns ruling The as error. Section 4-709, L. A., O. C. reads:
" party producing The a witness is not allowed impeach by character, his credit evidence of bad may but he contradict him other evidence, may also show that he has made at other times state present testimony, ments inconsistent with his as provided provided, in section 4-712; that wlien a party as a party calls witness either an adverse or assignor, agent, employe officer, or of an party, (he) adverse shall not be deemed to have may vouched the credit of such witness and he impeach the credit of such witness in the same produced by manner as in the of a ease witness ’’ party. an adverse proviso foregoing section came into our adopted Oregon law an amendment in 1937, Laws
100 party Ch. 23. Before calling a amendment adversary thereby a his as witness “vouched” for his credibility. language many That is of of the de Maupin cisions of this court: Warehouse Co. v. Flem ing, Peyree, 121 255 P. 531, 537, 606; Or. Sitton v. P. 242 P. 107, 123, 1112; Or. v. Graham, Chance expressed 148 P. 199, 203, 63. As Or. otherwise in 29 Or. 43 P. Steeves, 947: State “When a producing a party him to witness calls the stand he thereby represents worthy him to the court as wholly or at least not so as infamous to be credit, unworthy it.” of 1937 enacted in The amendment order to calling adversary party a his the stand of relieve “permit party a to call this burden adverse * * * party for examination as on cross-examina purpose § 778. Witnesses, 604, Its J., 70 C. tion”: adversary litigant his to call without mak “to enable possible, if ing him, and elicit from his own witness him knowledge”: J., ibid.; his 70 C. within facts material using legislature, the word “vouch” may to have had mind the mean assumed be statute, ing in the decisions of this court. used that word “bound”, we take to which use the word It did *22 By advising thing as “concluded”. the same mean credibility plaintiff not for did vouch jury that the jury that told the the court effect worthy represent him of credit. plaintiff did not by for as counsel instruction, that did court The jury extravagantly inform the contends, plaintiff testimony. That his plaintiff bound was that though in advance determined court had be as would permitted to be plaintiff not even would impeach The court neither witness. or contradict expressed implied any nor and, such view, fact, permitted for counsel to examine the freely defendant “as if on cross-examination” and to testimony. offer evidence in contradiction of his given instruction the court all ordinary was entitled to under the statute. circum- we stances, think that the indeed, court would have all, subject upon discretion refuse to instruct at though might it is conceivable that arise, situations example, urged for such, as a contention before the adversary party did his vouch for whom he had called as a which make witness, would such only proper necessary. instruction not but assignments There are other no of error. ac- On judgment count of the errors committed on the trial the will be reversed and the cause remanded further proceedings conformity opinion. to this