Allen v. Lindeman

Decision Date07 February 1967
Docket NumberNo. 52317,52317
Citation259 Iowa 1384,148 N.W.2d 610
PartiesJames ALLEN, Appellee, v. William LINDEMAN, Appellant.
CourtIowa Supreme Court

Frank Margolin, Sioux City, Harold Brown, Sac City, and Bernard A. Brown and Fred S. Nordenson, Sioux City, for appellant.

Thomas L. McCullough, Sac City and Russell Wunschel, Carroll, for appellee.

BECKER, Justice.

Plaintiff sues defendant for alienation of affections. His petition demands both compensatory and exemplary damages. Jury trial resulted in a $20,000. verdict for compensatory damages and a verdict for defendant on the issue of exemplary damages. Defendant appeals.

I. Defendant's first assignment of error involves the failure to direct a verdict in his favor on proper motion. He contends there is no competent evidence to establish plaintiff's cause of action. We disagree.

For the purpose of this assignment we view the evidence in the light most favorable to plaintiff. Rule 344(f).

Plaintiff James Allen met his wife, Wanda, in 1951. They were married in 1953. They had three daughters; ages 11, 9 and 6 at trial time in early 1966. The family moved from Guthrie Center to Sac City in 1958. The Allens operated a furniture and sporting goods store. They met and became friendly with defendant William Lindeman, a Doctor of Chiropractic, and his wife. The two couples were together socially at frequent intervals. They attended movies together, visited at each others' homes and went on joint fishing and hunting trips. Before this association commenced and during the early part of their friendship plaintiff testified that he and his wife got along well and loved each other. Defendant's evidence disputes this but here plaintiff is aided not alone by the jury's finding but by the presumption of affection between husband and wife. Glatstein v. Grund, 243 Iowa 541, 51 N.W.2d 162, 36 A.L.R.2d 531.

In discussing alienation of affections as a cause of action we have said: 'In Rank v. Kuhn, 236 Iowa 854, 857, 20 N.W.2d 72, 74, we stated the essential elements of these causes of action: '(1) wrongful conduct of the defendant; (2) loss of affection or consortium and; (3) causal connection between such conduct and loss. * * * An actual intent to alienate is not necessary if defendant's conduct is inherently wrong and tends to and does have the effect complained of.' Citations and a discussion of the rule follow.' Kiger v. Meehan, 253 Iowa 746, 750, 113 N.W.2d 743, 746.

The record reveals specific incidents constituting strong evidence that plaintiff's wife, Wanda, and defendant were in fact meeting secretly without the presence or knowledge of their respective spouses. Such incidents include discovery by plaintiff that his wife was not at church where she was supposed to be; further investigation by husband, discovery of wife Wanda and defendant at defendant's home alone. When discovered in defendant's home plaintiff's wife, Wanda, had her shoes off and a 'funny look on her face.' Defendant was surprised and angry. He said to plaintiff, 'Damm you. I ought to punch you one.' Plaintiff said, 'If the shoe fits, wear it.' Defendant said no more. Plaintiff and his wife left.

A farmer, Mr. Gerken, testified to seeing Wanda in her station wagon, the rear of which was converted to a bed, in his farm lane. He returned to observe defendant's car parked in the close vicinity of plaintiff's station wagon on the country road leading to his farm. He took the license number of both cars and later learned that they belonged to plaintiff's wife and to defendant, respectively.

There were also two letters from plaintiff's wife to defendant, the admissibility of which defendant contests. Their contents were completely revealing in relation to Mrs. Allen's feeling for Dr. Lindeman.

Plaintiff was also aided by passages from the discovery deposition. The deposition was significant, not for what defendant said, but for what, under close discovery examination, he didn't say, couldn't remember or flatly refused to talk about under protection of Amendment 5 to the Constitution of the United States.

The intimate details of suspicious circumstances related by plaintiff, the compromising circumstance of the meeting in the farm lane near Carroll, the love letters written to defendant by plaintiff's wife and the evasive testimony of defendant himself were sufficient to create a jury question. We need not enliven this opinion with minutiae.

II. One of the main tactical battles centered around two letters identified as written by plaintiff's wife, Wanda, to defendant. These letters were found in defendant's home by defendant's wife. She took them to Rev. R. D. Butler and had him keep the letters for her. Over protest by the minister that the letters were confidential communications deposited with him in confidence, the trial court required production of the letters and admitted them into evidence. The evidence was material and relevant as showing the attitude of plaintiff's wife toward defendant and the effect of defendant's conduct toward her during the period of alienation. Puth v. Zimbleman, 99 Iowa 641, 68 N.W. 895, 42 C.J.S. Husband and Wife § 688 d, page 341; Glatstein v. Grund, 243 Iowa 541, 51 N.W.2d 162, 36 A.L.R.2d 531; 42 C.J.S. Husband and Wife § 688, page 341. The Glatstein case notes that such evidence is not competent to show defendant in fact asserted a wrongful influence or said or did things charged. However, defendant's objections did not go to this point. No admonition or limiting instruction was requested. In the absence of such request defendant cannot now complain. Kiger v. Meehan, 253 Iowa 746, 113 N.W.2d 743; Hall v. City of Shenandoah, 179 Iowa 1192, 162 N.W. 575, 88 C.J.S. Trial § 131, page 265, 53 Am.Jur., Trial, section 97, page 87. Both of the foregoing legal encyclopedia sections also stand for the proposition that in the absence of a request for such limiting instruction, evidence so admitted is before the jury generally.

III. The question of privilege is somewhat more difficult. Rev. R. D. Butler's foundation testimony and defense counsel's voir dire examination were relatively short. No effort was made to detail either the purposes or results of the confidence between Mrs. Lindeman and Rev. Butler, but the minister did state that the letters were turned over to him by his parishioner in her consultation with him as the minister of her church.

The trial court ruled that the letters were not privileged, that there was no relationship within the calling of minister between the author of the letters and Rev. Butler. We hold the ruling to be correct.

Section 622.10, Code, 1966 reads: 'Communications in professional confidence. No practicing attorney, counselor, physician, surgeon, or the stenographer or confidential clerk of any such person, who obtains such information by reason of his employment, minister of the gospel or priest of any denomination shall be allowed, in giving testimony, to disclose any confidential communication properly entrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline. Such prohibition shall not apply to cases where the party in whose favor the same is made waives the rights conferred.'

In interpreting this statute in relation to ministers of the gospel we said in Castner v. Wright, 256 Iowa 638, 646, 127 N.W.2d 583, 588, 128 N.W.2d 885: 'This statute prevents a minister of the gospel from disclosing 'any confidential communication properly entrusted to him in his professional capacity * * *.' We have held the statute should be liberally construed and that the same statute prevents disclosure of knowledge and information gained by a physician from observation and personal examination of his patient in the discharge of his duties. Newman v. Blom, 249 Iowa 836, 843, 844, 89 N.W.2d 349, 354, 355, and citations; Bradshaw v. Iowa Methodist Hospital, 253 Iowa 1360, 1362 115 N.W.2d 816, 817 (a four-to-four decision).'

We have also held that the privilege section should receive a liberal construction to carry out the manifest purpose of the statute, Howard v. Porter, 240 Iowa 153, 35 N.W.2d 837 (no unfavorable inference arises from failure to call physician to testify to privileged matters). But this does not mean that every communication to a doctor, lawyer or minister is privileged. The burden of proving that the evidence sought to be excluded is privileged is on the one who seeks to exclude it. Stoddard v. Kendall, 140 Iowa 688, 119 N.W. 138; State v. Masters, 197 Iowa 1147, 198 N.W. 509.

We have here the delivery of two letters to a minister by the spouse of the addressee of the letters. While the minister in broad terms stated that the letters were delivered to him by Mrs. Lindeman as a parishioner in her consultation with him as her minister, this does not quite reach the mark. This court has succinctly stated: 'That which the statute forbids is a disclosure of 'confidential communications' properly intrusted to him in his professional capacity and necessary and proper to enable him to discharge the functions of his office according to the usual practice and discipline. Code 4608 (now 622.10)' Stoddard v. Kendall, supra.

We are dealing with an independent document, not a direct communication to the minister. This matter does not seem to be treated either in text or encyclopedia in connection with ministerial privilege. It is treated extensively in connection with attorney-client privilege. We think the principle applies to documents delivered to any of the classes of persons within the orbit of the statutory privilege.

At 58 Am.Jur., Witnesses, section 501, page 281, we note: 'Independent or Pre-existing Document--No privilege attaches to an instrument by reason of its passage from an attorney to his client, or vice versa, where the instrument existed prior to the formation of the relation of attorney...

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