101 Mo. App. 176 | Mo. Ct. App. | 1902
This is a suit for divorce brought by a husband as plaintiff, against his wife, on charges of alleged intolerable indignities, consisting of conduct in disregard of her personal duties as a wife, the particulars of which need not be more fully indicated at this time.
The defendant is charged to he a non-resident of Missouri. She was personally served with process in the State of Rhode Island, pursuant to the Missouri code of procedure. R. S. 1899, sec. 582.
No appearance was entered on behalf of defendant, so a default was taken against her in due time. The case then came on for trial.
Plaintiff offered in evidence the testimony of his mother and of two physicians, which tended strongly to sustain his charges of some of the indignities alleged.
While plaintiff was testifying as a witness he attempted to put in evidence certain statements or admissions to him by his wife in support of his allegations of indignities. He asserted that said statements were, made in the presence of his mother, hut the learned trial judge rejected the offer and ruled that the testimony of the third person in whose presence said conversation between husband and wife occurred, should be produced. Plaintiff excepted to that ruling.
The plaintiff offered considerable evidence of his good character and conduct, and of his kind treatment of his wife. There was no testimony offered for defendant ; but nevertheless the court dismissed the plaintiff’s petition. In due time the plaintiff unsuccessfully took the usual steps for a review, and then brought this appeal.
The seal of silence which the law sets upon confidential communication between husband and wife does not rest upon declarations between them which are shared by a third person. To such declarations the rule of exclusion does not apply for the reason that the presence of a third party participating in the interview eliminates the confidential nature of the communications then interchanged. The first division of the Supreme Court has held that the husband is a competent witness to a business conversation with his wife in the presence of a third person. Long v. Martin, 152 Mo. 668. That ruling is in accord with general principles of the law of this subject as shown in judicial expressions elsewhere. Allison v. Barrow, 3 Cald. 417; Lyon v. Prouty, 154 Mass. 488.
We hold that the offer of the testimony in question should have been favorably entertained.
The judgment is reversed and the cause remanded.