194 P. 686 | Or. | 1921
In order to ascertain whether a right is assertable and enforceable by the husband, and whether a corresponding liability has been incurred by the defendant, there must be .an examination of the conduct of Mrs. Pugsley and the relations between her and her hus
Not much difficulty is likely to be encountered when the inquiry relates directly to acts done or words uttered by the defendant. Ordinarily an investigation will be free from controversy, both as to the governing rule and also as to the application of the rule, where the inquiry relates directly to acts done by the alienated spouse, or even when the inquiry is broadened and includes the declarations of the deserting spouse directly asserting the existence or loss of affection; but dispute usually begins the moment any attempt is made-to inquire about declarations made by the deserting spouse, out of the presence of the defendant, concerning acts done or words spoken by the defendant; and it is apropos to add that this resultant contention arises not so much from differences of opinion about the governing rule of law as from the difficulty experienced in applying the rule, for frequently, as is well illustrated by the reported precedents, different minds will not always agree that a given declaration is within or without an agreed rule. In other words, even in those jurisdictions where declarations of the deserting spouse about the acts and utterances of the defendant may in certain circumstances, even though made in the absence of the defendant, be competent, there will be rcom for debate concerning the applicability of the rule.
A feeling or emotion, such as joy, fear, hatred, affection, is only a mental element — a frame of mind.
There are, of course, limitations and restrictions upon the rule. The reason of the rule naturally suggests the limitations upon the rule. If the utterance is nothing hut a recital or narrative of what has been done or said, and is not the spontaneous and natural manifestation of the then existing emotion which inspired and produced it, then it does not come within the reason of the rule and is not admissible. It may be that in a given conversation between the husband and his deserting wife she may make many declarations; and while some of these declarations may be natural expressions of emotions, yet the others may be pure narratives of acts done and words spoken, and hence not admissible.
Unless the verbal utterance of the deserting spouse can be said to have been a vocal manifestation of the then existing state of her mind, it is pure hearsay if it involves a statement of a declaration made by the defendant, and on that account is not admissible. It is not enough to say that a declaration made by the wife concerning acts or utterances by the defendant are accompanied by other declarations which reflect her then existing emotions, but the kind of declarations now under discussion must themselves come within the reason of the rule which makes them competent. It may be that a given declaration is meaningless and without significance unless viewed in the light of an accompanying declaration, or it may be that the latter is without significance unless considered in connection with the former. Each case is
Admissible declarations are usually further limited to those which have been made at or approximately before the alienation (Schneider v. Tapfer, 92 Or. 520, 526 [180 Pac. 107]); and yet, since “the mischief is a continuing one, going on from day to day, and becoming worse with the delay,” the inquiry may properly cover the whole period of alienation (Edgell v. Francis, 66 Mich. 303 [33 N. W. 501]).
The testimony of Mrs. Bradburn embraced in assignment of error (4), in our view, is within the rule and is competent.
The defendant argues that the instruction embraced in assignment of error (8) is defective because it fails to state that “the appellant’s actions must have been intentional.” The general rule is, as already pointed out, that the defendant must have intentionally caused the alienation of the wife’s affections: Saxton v. Barber, 71 Or. 230, 236 (139 Pac. 334); Nevins v. Nevins, 68 Kan. 410, 415 (75 Pac. 492); Keen v. Keen, 49 Or. 362, 366 (90 Pac. 147, 14 Ann. Cas. 45, 10 L. R. A. (N. S.) 504); Dodge v. Rush, 28 App. Cas. (D. C.) 149 (8 Ann. Cas. 671). Although the general charge given by the court was probably sufficient to cure the alleged defect in the instruction embraced by assignment of error (8), nevertheless, in this connection it is appropriate to suggest that upon a retrial the element of intention can be made clearer to the jury.
It is not necessary to discuss at length the assignment of error which questions the refusal to direct a verdict for the defendant, for, after excluding the incompetent declarations of the wife, there yet remains in the record sufficient evidence, if believed by a jury, to support a verdict.
“A husband shall not be examined for or against his wife without her consent, nor a wife for or against her husband without his consent; nor can éither, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but the exception does not apply to a civil action, suit, or proceeding, by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other.”
The statute deals, not only with the qualification of one spouse as a witness for or against the other, but also with the privilege with which the law shields communications made by one to the other. The husband was of course a competent witness, and, moreover, the wife becomes a qualified witness when the husband testifies in his own behalf, for by the express terms of Section 734, L. O. L.:
“That is to be deemed a consent to the examination also of a wife, * * within the meaning of subdivision 1 * * of the last section.”
However, we are not now interested in the subject of the qualification of one spouse to testify for or against the other; but the present inquiry is directed solely to that portion of the statute which treats of communications made by one spouse to the other.
What does the statute mean? Are the words “any communication” to be given their primary and literal
The common law from an early date privileged communications between husband and wife: 4 Wigmore on Evidence, § 2333. Notwithstanding its early appearance and recognition, there was even after the lapse of two centuries some question whether the common law
“A husband shall not be examined for or against his wife, nor a wife for or against her husband; nor can either, during marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during marriage. But this exception shall 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”: Statutes of Oregon 1853, p. Ill, § 7, subd. 1.
Upon comparing the Code of 1862 with that of 1853, it will be seen that the clause relating to communications between husband and wife is exactly the same in both Codes, except that in the Code of 1853 the word “the” does not appear before the word “marriage.” It will be also observed that, although not worded alike, the exceptions are the same in both cases.
Nearly every state in the Union has enacted legislation concerning the competency of one spouse to testify for or against the other, and so, too, nearly every state in the Union has adopted a statute concerning the privilege attached to communications made by one spouse to the other. In most, but not in all, jurisdictions the same statute covers both the qualification to testify as a witness and also the privilege accorded to a communication. Except in those states which have been admitted to the Union within the last 40 years, most of the legislation was enacted during the middle third of the 1800’s, and a large portion of it was adopted near the end of that period.
In some of the states, as in New York, North Carolina, Pennsylvania, New Jersey, and Texas, the privilege is expressly limited to “confidential” communications: 5 Birdseye (C. & Gc.) Consolidated Laws of. New York (Penal Law), § 2445; 1 Pell’s Revisal of 1908 (N. C.), § 1636; 4 Purdon’s Digest (13 ed., Pennsylvania), p. 5163, § 14; 2 Compiled Statutes of New Jersey, p. 2222, §5; 3 Texas Civil Statutes (1914), Art. 3689.
There are other statutes having legislation substantially like that of New York, although differently phrased, as in New Hampshire, where neither the husband nor the wife shall “be allowed in any case to testify as to any matter which in the opinion of the court would lead to a violation of marital confidence”: Public Statutes and Session Laws of New Plampshire in force January 1, 1901, Chap. 224, § 20. In Tennessee it is provided that neither “shall testify as to any matter that occurred between them by virtue or in consequence of the marital relation”: Shannon’s Code, §§ 5596 and 5597; McCormick v. State, 135 Tenn. 218 (186 S. W. 95, L. R. A. 1916F, 382). When a statute in terms confines the privilege to confidential communications, there can be no room for debate about the extent of the privilege; and, consequently, precedents dealing with statutes like that of New York can afford but little assistance when construing an enactment like Section 733, Or. L.
In a few states the single word “communication,” unaccompanied by any qualifying word, is employed to designate the extent of the privilege, as in Georgia, where “communications between husband and wife” are “excluded from public policy,” and though the husband is a competent witness in a suit for divorce, he “cannot testify to facts derived by reason of marital relations,” and the wife, though a competent witness, when the husband is a party, “cannot give evidence as to facts required from marriage relation”: 5 Park’s Ann. Code of Georgia (1914), § 5785. In Indiana it is declared that neither the husband nor the wife shall be a competent witness “as to communications made to each other”: 1 Burns’ Ann. Indiana Statutes (Bevision of 1914), § 520, subd. 6. When dealing with statutes like that of Georgia, there are strong reasons for saying that the privilege is limited to confidential communications: Toole v. Toole, 107 Ga. 472 (33 S. E. 686). Statutes like that of Indiana can with much more reason be held to include only confidential communications than can those where the word “any” is employed.
In most of the states, as in Oregon, “any communication” are the words found in the statute: Bevised Statutes of Arizona (1913), Civil Code, § 1677, subd.
The words “any communication” or their equivalent “any conversation” have been given their natural and primary signification and construed to mean “ all ” communications, in California, Colorado, Illinois, Rhode Island and Virginia: People v. Mullings, 83 Cal. 138 (23 Pac. 229, 17 Am. St. Rep. 223); Park v. Park, 40 Colo. 354, 360 (91 Pac. 830); Reeves v. Herr, 59 Ill. 81, 84; Mueller v. Knollenberg, 161 Ill. App. 107; Donnan v. Donnan, 236 Ill. 341, 345 (86 N. E. 279); Campbell v. Chace, 12 R. I. 333; Wilke’s Admr. v. Wilkes, 115 Va. 886, 892 (80 S. E. 745). See, also, Hoyt v. Davis, 21 Mo. App. 235; Waddle v. McWilliams, 21 Mo. App. 298; Holman v. Bachus, 73 Mo. 49. At this point in the discussion it is appropriate to mention the fact that when the Code of Virginia was
M. P. Deady, A. C. Gibbs, and J. K. Kelly were the Code commissioners who prepared our Civil Code which was adopted in ,1862. The territorial Code, which became effective on May 1, 1854, was prepared by James K. Kelly, Euben P. Boise, and Daniel E. Bigelow. The men who prepared these two Codes were learned members of the legal profession, and indeed some of them were pre-eminent on the bench and at the bar, and therefore we may safely assume that both commissions were fully aware of the uncertainty that had so long existed and of the prolonged debate about whether the common-law rule included all communications . or only confidential communications. Assuming then that the Code commissioners were fully informed about the history of the common-law rule, the conclusion is inevitable that they used the word “any” deliberately and advisedly and for the purpose of avoiding uncertainty, and that by so
It is impossible to say that the word “any” means only “confidential” communications, unless the word “confidential” is expressly or impliedly written into the statute. The lawmakers did not expressly write the word “confidential” into the statute, and the evidence' furnished by the surroundings when the statute was enacted, as well as the evidence contained within the language of the statute itself, argues strongly against the implied insertion of the word “confidential.” After first privileging “any communication,” the statute proceeds to specify the exceptions to the privilege; and by expressly naming the exceptions, the lawmakers have impliedly excluded all other exceptions: Watkins v. Lord, 31 Idaho, 352, 356 (171 Pac. 1133). Our statute does not specify actions for the
Attention has already been directed to the fact that some statutes do and others do not recognize the right to waive the privilege. Our statute expressly recog nizes the right of waiver. One spouse may consent that the other may reveal a communication. Consent may be expressed or implied. A spouse may in terms give his or her consent to the publication of a communication. Even though a spouse does not at any time expressly consent to publication, nevertheless a communication may be such as to carry with it by plain or necessary implication, consent to publication: Leppla v. Minnesota Tribune Co., 35 Minn. 310 (29 N. W. 127); Newstrom v. St. Paul & Duluth R. Co., 61 Minn. 78 (63 N. W. 253). Dying declarations illustrate the principle of implied consent. Communications upon matters of business furnish a variety of examples. If it be supposed that a husband appoints his wife as his agent to sell his property, in that instance an implied consent is clearly manifested, for it must be assumed that he consents that she may inform the purchaser of her right to sell. There are a multitude of communications, particularly in relation to matters of business, made by one spouse to the other for the sole purpose of giving information so that such information may be used and, if need be, published. Indeed, many examples can be suggested where the communications would be utterly futile unless they could be published, and hence in those instances there results an unusually
In brief, the words “any communication’ ’ mean that all communications between husband and wife are privileged, unless express or implied consent to publication is given, or unless the privilege is lost by being brought within one of the exceptions specified by the Code. There can be no force in the argument that the. statute does not apply to alienation cases on the ground that such cases have to do with the separation and estrangement- of the spouses. The statute declares that the communications are privileged if made “during the marriage” and, consequently, the. words “during the marriage” serve as a complete answer to the suggested argument, although it may be conceded that the argument seems to have been approved at least in one jurisdiction having a statute containing the words “any communication.”
The reasoning employed and the conclusion reached in State v. Wilkins, 72 Or. 77, 82 (142 Pac. 589), have not been overlooked. In that ease, however, the court was dealing with a criminal action. In the - instant case we- are dealing with .a civil action. It is settled that Section 733, Or. L., “does not apply to criminal prosecutions” and, consequently, what was said in State v. Wilkins, only dealt with a section of the Criminal Code and is not necessarily applicable to a section in the Civil Code, although both sections relate in some respects to the same subject matter: State v. Luper, 49 Or. 605, 607 (91 Pac. 444).