168 Ky. 466 | Ky. Ct. App. | 1916
Opinion op the Coubt by
— Reversing.
This is the second appeal of this case. . The opinion rendered by this court on the former appeal is reported in 159 Ky., 805, and is decisive of several of the questions presented here.
Upon the last trial the wife of appellee, Mrs. Bessie ITowell, having procured a divorce from him subsequent to the former trial, was introduced as a witness for appellant, her father. That trial resulted in a verdict in favor of appellee for $5,520.00 against appellant, who is prosecuting this appeal to reverse the judgment entered thereon. Numerous errors are assigned as grounds for a new trial, but errors in the trial court’s refusal to permit the divorced wife of appellee to testify about certain matters are the principal grounds relied upon by counsel for appellant for a reversal of the judgment. The testimony thus rejected is presented to us in six avowals.
Such evidence, in criminal- cases where the motive is an important element, has been held competent. Commonwealth v. Hourigan, 89 Ky., 305; Shepherd v. Commonwealth, 119 Ky., 931; Shipp v. Commonwealth, 124 Ky., 643; Massie v. Commonwealth, 16 Ky. L. R., 792; People v. Hurtado, 63 Calif., 288; People v. Webster, 139 N. Y., 73. And there seems no reason why, in civil cases where motive is the subject of inquiry, the same rule should not prevail.
She was a competent witness to testify what she actually told her father, a relevant circumstance not within the prohibition of section 606 of the Code, although she was not a competent witness to testify what actually happened between her and her husband, a circumstance within said prohibition. The distinction, though narrow, is sound.
For the same reason she should have been allowed to testify under the sixth avowal' whether or not she left appellee of her own accord, and whether or not her father persuaded or coerced her to leave him, but she ought not to have been permitted to testify to that part of said avowal which described the conditions in her home, or the actions and statements of appellee to her while the marital relation existed.
All this testimony was competent and its rejection was prejudicial to appellant. None of it was informa
Avowal five contains the testimony this witness would have given, if permitted, of the fact that she wrote the letter to her mother, which upon the former appeal of this case was held to be competent evidence, and of the time when she wrote it. This evidence was also competent and its exclusion prejudicial to appellant. Testimony that she wrote the letter, and the time that she wrote it related only to a transaction of her own during marriage, but entirely independent of it, and did not in any way violate provisions of section 606 of the Code, and without this testimony to properly accredit the letter, its value as evidence on behalf of appellant was probably destroyed.
The court also erred in refusing to permit Cephus Allen to testify to a conversation he had with Mrs. Howell before the separation, as is admitted by counsel for ap--pellee in brief.
And appellee, of course, should not be permitted on another trial of this case, as he was at the last trial, over appellant’s objection, to testify to statements made to him by his former wife while the marriage existed, since it is expressly prohibited by section 606 of the Code.
Numerous other errors were assigned as reasons for reversal, hut we do not deem it necessary to consider them.
For the reasons indicated the judgment is reversed and this cause is remanded for a new trial consistent herewith.