272 F. 28 | 9th Cir. | 1921
The defendant in error, as the beneficiary of a policy of insurance on the life of her deceased husband, brought an action against the plaintiff in error to recover on the policy. The defendant pleaded that the deceased had committed suicide before the expiration of the first two insurance years. The policy contained the provision that in the event of self-destruction during that period, “whether the insured be sane or insane,” the insurance should be equal only to the sums paid as premiums. The deceased died as the-result of two pistol wounds from a pistol which he held in his hand. The defendant contended that the wounds were voluntarily inflicted. The plaintiff contended that they were accidental. The shooting occurred in the basement of the house in which the deceased lived with his wife and child. The wife and child were absent at the time. The plaintiff testified that on returning to the house and hearing the voice of her husband calling her, she went to the basement, where she found him lying on a bed; that there was propped up near the head of the bed an envelope containing money and bills amounting* to $745; that her husband rose from the bed and with her assistance walked upstairs to their bedroom; that a doctor was summoned and the deceased was taken to a hospital, where he died a few hours later. The defendant, assuming the burden of proving its defense so pleaded, introduced in evidence the envelope above mentioned, and which had been theretofore put in evidence at the coroner’s inquest and filed in the of
The defendant having rested, the plaintiff testified in her own behalf concerning statements made by the deceased to her. She testified that on the morning of the day in which he was shot, he had said that he would go down town “and get the gun and some shirts, and get the money that he had coming.” She testified further that she had asked him to get the gun. Objection was interposed to evidence of oral ■communications between the husband and wife, on the ground that under the Montana statutes the plaintiff was forbidden to testify to the same by clause 4 of section 7891, as amended by the act of the Legislature of 1913 (Laws 1913, c. 41), and section 7892. The first ■of these statutory provisions provides:
“The following persons cannot be witnesses: * * * (4) Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted against any person or corporation, as to the facts of direct transactions or oral communication between the proposed witness and the deceased agent, of such person or corporation, and between such proposed witness and any deceased officer of such corporation.”
The second provides as follows:
“There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following eases: (1) A husband cannot be ■examined for or against his wife, without her consent; nor a wife for or against her husband without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other.”
“He told me, T bought that gun, and it shot me twice,’ and he told me not to touch it; that it shot repeatedly; that it might shoot me. He told me he did not mean to shoot himself, and said, ‘Why would an accident happen like this?’ and said that he did not think he was shot seriously.”
“In many jurisdictions this fundamental element of confidence is not expressly named in the statutory enactment; it privileges ‘any communication.' Some courts, however, have construed this phrase in the spirit of the correct principle, and have implied a limitation to confidential communications. Others have literally applied the words of the statute, which is thus allowed to create an intolerable anomaly in the law of privileged communications. No justification for such an extension of the privilege has ever been attempted, and it must be supposed that this broad statutory phrasing originated in inadvertence. It is proper enough to maintain (as already noticed) that all marital communications should be presumed to be confidential until the contrary appears; but if the contrary appears, there is no reason for recognizing the privilege.”
In 40 Cyc. 2354, it is said:
“The rule under discussion excludes only testimony as to confidential matters, and leaves the witness competent to testify as to any matters as to which liis or her knowledge is not acquired through the confidence of the marital relation, and the disclosure of which by the witness involves no breach of marital confidence, although such matters relate to the transactions of his or her spouse.”
We have examined a large number of cases in which the reasonable and just doctrine so expressed has been applied to statutes identical with that of Montana, and we find that the weight of authority sustains that view of the meaning of such a statute. In Sexton v. Sexton, 129 Iowa, 487, 105 N. W. 314, 2 L. R. A. (N. S.) 708, construing a similar statute, the court said:
“There can be no reason arising out of public policy, or otherwise, requiring that every word spoken between husband and wife shall be privileged, irrespective of the presence in which spoken or the subject or occasion thereof. And, within our observation, no court has ever gone so far as to so hold. The spirit of the rule as enforced at common law, and, within onr understanding, the meaning to be gathered from the statute, is that the privilege shall be construed to embrace only the knowledge which the husband or wife obtains from the other, which, but for the marriage relation and the confidence growing out of it, would not have been communicated, or which is of such nature or character as that, to repeat the same, would tend to unduly embarrass or disturb the parties in their marital relations. It is the marital communication, then, that is sought to be protected, and this is so because there can be no purpose of public policy to interfere, except to guard and foster the marital relation.”
Other cases in point are Sackman v. Thomas, 24 Wash. 660, 64 Pac. 819; Van Alstine’s Estate, 26 Utah, 193, 72 Pac. 942; Graves v. Graves, 70 Ark. 541, 69 S. W. 544; State v. Snyder, 84 Wash. 485, 147 Pac. 38; Ward v. Oliver, 129 Mich. 300, 88 N. W. 631; State
The judgment is affirmed.