105 N.W. 314 (Iowa 1905), Sexton v. Sexton

Citation:105 N.W. 314, 129 Iowa 487
Opinion Judge:BISHOP, J
Party Name:BLANCHE E. SEXTON, Appellee, v. JAMES SEXTON, SR., Appellant
Attorney:F. E. Gill and W. E. Johnston, for appellant. P. W. Harding, for appellee.
Case Date:December 16, 1905
Court:Supreme Court of Iowa

Page 314

105 N.W. 314 (Iowa 1905)

129 Iowa 487



JAMES SEXTON, SR., Appellant

Supreme Court of Iowa, Des Moines

December 16, 1905 [*]

Appeal from Ida District Court.--HON. Z. A. CHURCH, Judge.

ACTION at law by plaintiff to recover damages from defendant, her father-in-law, for alienating the affections of her husband. There was a verdict and judgment in favor of plaintiff, and defendant appeals.-- Affirmed.


F. E. Gill and W. E. Johnston, for appellant.

P. W. Harding, for appellee.


[129 Iowa 488] BISHOP, J.--

Plaintiff and James Sexton, Jr., were married in November, 1899, and for some time thereafter continued to live together.

Page 315

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 4607), 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.

This court has not been called upon before to give construction to the statute in the precise relation exhibited by the instant record. But, as we shall see presently, cases have arisen presenting fact situations more or less similar, and in the determination of which the rule of the statute, and the force and effect to be given thereto, was the subject of consideration and of pronouncement. The literal reading of the statute would seem to be quite conclusive against the right to call either the husband or wife to speak from the witness stand respecting communications had between them, no matter what the character thereof or the occasion or purpose. But we are not always restricted to the precise words employed, [129 Iowa 489] in getting at the meaning of a statute. And it is the real purpose and intent of the Legislature, as meant to be expressed, to which we are to give force of operation. Noble v. State, 1 Greene 325; Dilger v. Palmer, 60 Iowa 117, 10 N.W. 763. That which is clearly not within the intention of a statute, although within the letter thereof, is held not to be within the statute. Crabell v. Wapello C. Co., 68 Iowa 751, 28 N.W. 56. And a construction is not to be put upon a statute which would manifestly effectuate injustice, if it is susceptible of a different construction. Small v. Railway, 50 Iowa 338.

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 [129 Iowa 490] the expression "any communication" is in form of words of broader import than the expression "confidential communication, " is clear enough, although some courts have treated the expressions as synonymous for the purposes of practical application. Other courts, however, have placed a more strict construction upon the word "confidential," and have refused the privilege unless the communication called for either bore the impress of...

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