Rice v. Rice

104 Mich. 371 | Mich. | 1895

Lead Opinion

Grant, J.

Plaintiff recovered verdict and judgment against the defendant, her father-in-law, for the alienation •of her husband's affections. Plaintiff and her family were Catholics; her husband and his family were Protestants. Her husband was defendant's only son. Both families were farmers, living about two miles apart. Plaintiff and her husband were of the same age, and 21 years old when married. It is evident that neither family looked with' much favor upon the marriage. During the courtship the; question of her religion had been discussed between them. He refused to be married in the Catholic church or by a Catholic priest. She yielded her wishes in this respect, and they were married by a Protestant clergyman. None-of the members of either family attended the wedding. Immediately after their marriage they went to the defendant’s house, where they lived three months. They then moved to a house on defendant’s farm, where they lived together about six months, when plaintiff’s husband: abandoned her, and returned to his father’s home. Meanwhile he worked on his father’s farm. She remained away from her church for a while, but finally returned to it. Whether her Protestant marriage resulted, ipso facto, in-dissolving her church relations, or whether she voluntarily gave up her membership, does not clearly appear, nor is it material to inquire. On Sunday, the day her husband abandoned her, she returned, and resumed her relations with the church. As she expressed it, she was “taken back into the church.” On her return from church, between 10 and 11 o’clock in the forenoon, she found the defendant and his wife, her husband, and the defendant’s-hired man with a team removing the furniture from the house, and was then informed by her husband, in the presence of the defendant, that she had gone back to the church, and he would no longer live with her. The household goods were removed, and she went back to her former home. The testimony of the plaintiff herself and her witnesses tended to support her case. The testimony of the defendant and his witnesses was a plain and clear denial of that on the part of the plaintiff, and, if true, showed that he had done no more than to give his son that advice which he was justified in giving. If the jury believed her testimony, she was entitled to a verdict; if they believed his testimony, she was not. The error© alleged arise upon the competency of some of the jurors,, the admission and rejection of testimony, and the charge-, of the court.

1. A juror named Jesse Hitchcock, on his examination,, testified that he lived in the neighborhood; was acquainted! with the defendant; had talked with many different persons about the affair; had not discussed the merits of the case; the persons with whom he talked expressed an opinion to him; he had also expressed an opinion based upon what he had heard; had formed a sort of an opinion, if what he had heard was true; that it would take some evidence to remove that opinion; but that it was not so fixed that he would not be governed by the evidence. On cross-examination he testified that he knew both parties, and had known them intimately for a long time; did not know as he had formed any opinion upon the merits; might have formed some impression.

“Q. Do you think you could try the case as fairly and impartially between the parties as you could if you hadn't, heard of it, and formed those impressions?

“A. Possibly not.

“Q. Ton think you could not?

“A. I presume I could not."

The juror was challenged for cause, and the challenge-overruled.

Even in criminal cases, the formation or expression of opinion not based upon actual knowledge, or upon conversations with those cognizant of the facts, does not disqualify a juror, provided the juror shall declare on oath that he believes he can render a fair and impartial verdict. Holt v. People, 13 Mich. 224; Ulrich v. People, 39 Id. 245. In a civil case, the disqualification of a juror must clearly appear in order to justify a reversal by an appellate court.. It does not appear that this juror had conversed with! either of the parties or their friends, or with any one having knowledge of the facts. The sources of a juror’s information are important in determining his qualifications. People v. Barker, 60 Mich. 287. We do not think this juror was legally disqualified.

2. The defendant saw a picture of the Virgin Mary hanging upon the wall in plaintiff’s house,, which had been hung there by an aunt of the plaintiff, who was i;hen present. He asked plaintiff if she put it there, to which she replied in the negative. He then asked the -.aunt, who said she put it there, and the conversation was permitted to be given about the picture. The court held it incompetent: but, on the statement of plaintiff’s counsel that he would show something more in that connection, it was allowed to stand. Witness then testified that defendant said, in the presence of plaintiff and her aunt, that “he would rather see his son dead than living with a Catholic.” This testimony was competent, but the rest of the conversation was incompetent. His dislike and condemnation of a picture had no earthly bearing upon the issue. The language imputed to him by the witness was such as would naturally prejudice a jury.

3. On cross-examination of the plaintiff, this question was asked:

-“Did you know that your church did not recognize a marriage as binding between a Protestant and Catholic, by jsl Protestant clergyman?”

This was ruled out, under objection, and plaintiff’s counsel remarked:

“ There is no law of this State that permits a father-in-law to take away a husband.”

Another witness for the plaintiff was asked, on cross-examination:

“You know that in that church that [the marriage] meant no salvation for her [the plaintiff], and you did mot object to that?”

This also was ruled out. The object of the testimony appears to be that it tended to rebut the testimony of the witnesses that plaintiff’s family did not object to the marriage. We think the ruling of the court that this testimony was too remote for that purpose was correct.

The statement of the plaintiff’s counsel was ill advised, but it is not of sufficient importance to justify a reversal of the case.

4. The defendant’s wife, a witness in his behalf, testified that she objected to the marriage, and was asked to state what her objections were. The question was properly excluded. Her objections could have no possible bearing upon the issue, viz., the alienation of .the husband’s affections by the defendant.

5. On cross-examination of defendant’s wife counsel for plaintiff asked:

“So that the extent of her sinning at that time against the Eice household was by attending church again?”

The answer was allowed under objection and exception. This was followed by the question:

“Didn’t you think a person in this country ought to be allowed, under reasonable restrictions, to embrace what religion as seemed to them to be proper?

“A. Yes, sir.”

After it was answered, counsel for defendant objected to it as immaterial and irrelevant, and the court held the question to be improper. Both questions should have been excluded.

6. In the winter after the separation, which occurred in October, the defendant’s wife had a conversation with a Mrs. Owens, in Kalamazoo. On cross-examination the following question was asked her:

“Do you recollect having a conversation with her in which you said that you were waiting for Lem to come and take you home; that you supposed Julia had got a hold of him somewhere, and was trying to coax him to live with her again, but that was all the good it would do her, — that Lem should never live with her any more?"

This was answered under objection, and she denied saying that her son should never live with plaintiff again. Mrs. Owens was called in rebuttal, and testified to this conversation. She did not, however, testify that Mrs. Rice said that her son should never live with his wife again, but that she did say:

“I presume that Julia has got him cornered somewhere, but it will never do her any good."

She also testified to other statements which she said Mrs. Rice had made, but about which Mrs. Rice had not been questioned, and they were therefore inadmissible.

The court admitted the testimony for the sole purpose of shoAving the feeling of the witness Mrs. Rice towards the plaintiff. The substance of the ruling was to hold it competent as affecting her credibility. Any statement made by her of her prejudice or feelings against plaintiff was proper for the jury to consider in determining Avhat weight they should attach to her testimony, and, if she denied making such statement, it would be proper to contradict her by other witnesses. Attorney General v. Hitchcock, 1 Exch. 91; Tolbert v. Burke, 89 Mich. 145. The difficulty is that the statement testified to by Mrs. Owens does not tend to show any ill feeling or prejudice against the plaintiff. At most, the statement only means that her son would not return to his wife. It does not naturally show any ill will towards her. It was a mere statement of fact, which may have been based upon what her son said and her knowledge of his character.

In view of a new trial, we deem it proper to remark that the proper method of impeachment by proving contradictory statements was not pursued in this case. Time, place, and person must be fixed by the impeaching question. The language which it is claimed the witness used must be given, and he asked if he used it. The same question, so far as the language is concerned, must then be asked of the impeaching witness. De Armond v. Neasmith, 32 Mich. 231. In this case Mrs. Owens was asked to state the conversation she had with Mrs. Rice at the time and place fixed in the impeaching question. As already shown, she introduced other matter, about which no inquiry had been made of Mrs. Rice. In De Armond v. Neasmith it is said:

“When an attempt is made to impeach a witness, there should be no reasonable doubt but that the questions asked the impeaching witness and the witness sought to be impeached are one and the same. It is so easy for witnesses to misunderstand each other, or to forget what was really said, that there should be no chance for dispute in this respect. Fairness to both requires this.”

The unfairness of the opposite course is well illustrated-in this case. It is fair to remark that no objection to the course pursued was made.

7. The defendant produced and offered to swear the plaintiffs husband as a witness. The court held that he could not be sworn as a witness against his wife without her consent. The court, when objection was made, carefully excluded all conversations between the plaintiff and her husband when the defendant was not present. This right of the defendant to have all conversations which were not in his presence excluded should be carefully guarded by the court. No authorities are cited to sustain the defendants position. Any ' testimony from the husband against his wife is clearly within the prohibition of the statute. 3 How. Stat. § 7546. The plain provisions of the statute cannot be avoided by the fact that plaintiff testified to conversations and acts on the part of her husband in the presence of the defendant. Had he been permitted to testify to these conversations, to contradict her, he would clearly have been a witness against her, and that he cannot be unless he comes within the exceptions in the statute.

8. Nearly all the requests on the part of the defendant for instructions were given, and covered every phase of the case. The court instructed the jury that it was not the duty of the defendant to advise his son not to separate from his wife; that if the husband had made up his mind to leave her if she rejoined the church, and, finding that she had done so, set about leaving her, and the defendant, while he was so doing, advised him that he thought it was best to do so before they had children, there was no liability; that they must find that her husband separated from her because the defendant alienated his affections; that he had the right to object to his son’s marrying a Roman Catholic; that he had the right to advise his son that it would be unwise for him to live with her if she again joined the church; that any advice he might give his son after the separation would not afford a cause of action. The court in these instructions is within the rule of Hutcheson v. Peck, 5 Johns. 196, which appears to be the earliest case of this character. When a father or mother is charged with the alienation of a husband’s or wife’s affections, the quo animo is an important consideration. The right of the parents to advise their children must ‘ be carefully protected, as well as the rights of a husband or wife. We think this was done in the present case.

It was not error to refuse to instruct the jury that the ■defendant must have been the sole cause of the separation. It was sufficient if he was the effective cause. If it were shown that defendant’s wife had also used her influence to cause the separation, this would not relieve the defendant from the consequences of his own conduct. One joint wrong-doer cannot defend upon the ground that another assisted him in accomplishing the result.

9. The defendant requested the court to instruct the jury that there was no testimony entitling the plaintiff to recover more than nominal damages, and that there was no facts u$on which they could determine what, if any, loss she had sustained, either of the society, assistance, or support of her husband. This request, as a whole, was properly refused, because it left out entirely the damages resulting from mental anguish, mortification, and injured feelings. In those actions where damages may be awardeds for these and for loss of society, the amount of damages lies in the sound discretion of the jury. They are not capable of accurate measurement, and it is not necessary to introduce any evidence of value. When the jury have before them the social standing and character of the parties, and the circumstances surrounding the wrong done, they have all that is proper and necessary upon which to find a verdict. ' Had the defendant requested the court to instruct the jury that there was no evidence upon which they could find a verdict for loss of support and maintenance, it would have been error to refuse it, because there was no evidence of the value of such support. The sole evidence was the fact that they lived together for siXy months in a house owned by defendant. The court instructed them that she was entitled to recover for mental anguish and suffering, mortification and embarrassment, for the loss of her husband's society, and for the loss of his support and maintenance. It is true that the court said to them that “all these elements of damage, except the loss of support and maintenance, are such that it is not possible to figure them out on any mathematical basis;'' but he did not instruct them that there was no basis afforded by the evidence upon which they could determine the damages resulting from loss of support and maintenance. The verdict ($3,000) was large, considering the condition of the parties, and we cannot say that the jury did not consider and allow for the loss of support.

The judgment must be set aside, and a new trial ordered.

Hooker, J., concurred with Grant, J. McGrath, C. J., concurred in the result. *

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Concurrence Opinion

Montgomery, J.

I concur except as to the last point. As there was evidence that plaintiff had in fact been supported by her husband, I think the withdrawal of such support should be considered as an element of damage.

Long, J., did not sit.