129 Iowa 487 | Iowa | 1905
Plaintiff and James Sexton, Jr., were married in November, 1899, and for some time thereafter continued to live together. One child was born to them, at the time of the commencement of this action three years old. Before the action said James, Jr., had abandoned plaintiff and their child, and was making his home with the defendant, his father. During the trial plaintiff was called as a witness on her own behalf, and to prove that her husband regarded her with affection at and for some time after the marriage, and, further, to prove the subsequent loss or withdrawal of such affection by him, she was allowed to testify to acts, statements, and declarations on his part, addressed to her. To the same end, several letters, written to plaintiff by her husband while absent from home, and produced by her in court, were also allowed to be introduced and read to the jury. To all such evidence the defendant made timely objection, basing the same upon the statute ('Code, section 4601), which reads as follows: “Neither husband nor wife can be examined in any case as to any communication made by the one to the other while married,” etc. ■ The objections were 'overruled, and upon such rulings is predicated the only contention for error as presented in argument by counsel for appellant.
The privilege of communications between husband and wife, was secured at common law. The rule was not designed to suppress truth, but had its origin in the fact, made clear by experience, that greater mischiefs resulted from the admission of such evidence than were likely to arise from its exclusion. In common, therefore, with other privileges analogous in character, it was-grounded on public policy. In stating the reasons for the privilege Mr. Greenleaf says: “ The happiness of the married state requires that there should be the most unlimited confidence between husband and wife, and this confidence the law secures by providing that it shall be kept forever inviolable; that nothing shall be extracted from the bosom of the wife which was there confided by her husband.” 1 Greenleaf on Evidence, section 254. That the common-law courts were not all agreed as to the measure or extent of the privilege must be confessed, and that such lack of uniformity in decision has continued, notwithstanding the principle involved has generally found its way into the statute law of the land, is equally true. Without doubt, however, the latter fact is due in some measure to the difference in phrasing to be found in the enactments as adopted in the various States; some providing for the exclusion of so-called confidential communications only, and others, as in this State, providing in terms that any communication is within the privilege. That
We come, then, to the question, what is meant by the expression “ any communication ” as used in the statute ? As we have seen, the privilege is bottomed upon considerations -of public policy. Accordingly it would seem that, whatever the form of expression adopted, no more is required than that the confidences inherent in the marital relation, or. incident thereto, should be fully protected. Says Mr. Wigmore, in his recent work on Evidence (section 2336) : “ The essence of the privilege is to protect confidences only.” And this must be true, because 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 our '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 marital relation and the confidence growing out of it, would not have been communicated, or
So, too, it cannot be that the rule of privilege must be held to extend so far as to exclude all communications between husband and wife having reference to business relations existing either as between them directly, or as between them — one or both — and others. Certainly as to business relations existing between husband and wife directly, there can be no adverse consideration of public policy. Quite to the contrary, public policy, as reflected by statute and by our decisions, permits of such relations to the fullest extent. And it would be shocking to say that a contract thus made, or rights or liabilities thus accruing, could not be enforced because,, forsooth, a communication
To the general proposition thus advanced it is no answer to say that, by Code, section 4606, husband and wife are made competent witnesses for and against each other in all such cases. That statute goes no farther than to authorize ihe husband or wife to testify to facts within his or her knowledge, and material or relevant to the issue. It has no relation to the subject of communications made by the one to the other. “ At common law neither husband nor wife
Moreover, and for kindred reasons, a literal interpretation of the statute would in many cases forbid an inquiry into the personal wrongs committed by one spouse against the other, and especially where such consisted of a verbal act, or where the statements or declarations accompanying a physical act were necessary to establish the true character of such act. To hold for exclusion in such cases would not only be subversive of the principle of public policy under which the rule of the statute came into existence — that is, the promotion of the interests of the marital relation — but it would be to hold for the equal effectiveness of the privilege as an engine for the suppression of the evidence of wrong, possibly crime; in many instances making it impossible, either to grant a right well-recognized in law or to administer relief, a condition wholly violative of another and well-
What has been said foregoing will be sufficient to make clear the reasons for our conclusion that the statute was intended to protect only marital communications. And this conclusion is not at variance with the holding in our recent case of Hertrich v. Hertrich, 114 Iowa, 643, and principally relied upon by appellant. That was an action to set aside a will. The widow of the testator was called -by contestants, and interrogated as to communications made to her by her husband in his lifetime. What was the character of the communications does not appear in the statement of the case, and we may assume that they were such as were induced by the marital relation. It was held that they were properly excluded. In the course of the opinion emphasis is laid upon the expression “ any communication,” as used in the statute, and it was said that “ in the highest sense all communications of this class are privileged, because the law makes them so.” It is to be remembered, however, that the attention of the court was centered upon a case for exclusion — the peculiar facts thereof brought it clearly within the reason of the statute — and the reader of the opinion may not disassociate himself from that fact in putting construction upon the language used by the court. Rightly
It may be confessed that what are marital communications cannot be answered according to any fixed rule. The varying circumstances of married life are such that the question must be made to depend for its answer upon the peculiar circumstances of the case out of which it arises. Perhaps no better guide for general observance can be found than to say that impliedly all communications between husband and wife are confidential in character, and hence privileged, and that the party asserting the contrary in any given instance must satisfy the court by the circumstances of the case that grounds for exclusion do not exist. It being made clear that the rule of privilege is not a rigid one admitting of no exceptions, we have, then, to consider whether, in view of the issue here presented, the testimony of plaintiff, in character as hereinbefore stated, may fairly be said to have been within the rule of exclusion because of marital communications. Looking first to the issue, it is clear that the burden was upon plaintiff to establish, among other things, first, that at the beginning of their married life she possessed the affection of her .husband; second, that such affection had been lost to or withdrawn from her. Ordinarily the law presumes the existence of affection between the husband and wife. And there would seem to be no good reason for a different rule in cases of this character. Bailey v. Bailey, 94 Iowa, 598. But it was competent for plaintiff to offer evidence on the subject, and this she might do, if for no other purpose than as affecting the question of damages. Now, marital affection, or the want’ of it, is manifested alone by acts, either physical or verbal, and it can be fully proven in no other way than by presenting to the court or jury the relevant doings and sayings of the spous.e in question. That physical acts do not come within
But aside from this, and speáking first of testimony intended to establish affection, there can he nothing in the rule of privilege to justify the exclusion of testimony by a spouse bearing upon the existence of such fact; and this, whether the evidence offered be of physical acts or verbal acts. Affection between husband and wife is the rule, and, as we have seen, the law presumes it. Indeed, it is published to the world with the fact of marriage. Accordingly in no sense can it be a matter of marital confidence, and as such, subject to be violated by the one testifying to the acts, physical or verbal, commonly understood to be declaratory thereof, in proof of the fact. And in the case of verbal acts
It cannot be said that all the authorities are agreed upon the subject, but our conclusions are not only warranted by what is said in Wright v. Wright, 114 Iowa, 748, but find strong support in the following, among other cases that might be cited: Henry v. Sneed, 99 Mo. 407 (12 S. W. Rep. 663, 17 Am. St. Rep. 580); Ash v. Prunier, 105 Fed. 722 (44 C. C. A. 675); Horner v. Yance, 93 Wis. 352 (67 N. W. Rep. 720); Beach v. Brown, 20 Wash. 266 (55 Pac. Rep. 46, 43 L. R. A. 114, 72 Am. St. Rep. 98); Driver v. Driver, 153 Ind. 88 (54 N. E. Rep. 389); Perry v. Lovejoy, 49 Mich. 529 (14 N. W. Rep. 485). As disclosed by the record, the instant plaintiff made disclosure in her evidence of only such acts and conversations as tended to proof of affection and the subsequent loss thereof. It is true that, included in some of the statements and declarations of her husband, as related by her, reference was made to sayings and doings on the part of defendant, but this was carefully guarded by an instruction given to the jury.