Baird v. Carle

• Decision Date: 17 June 1914
• Docket Number: No. 152.,152.
• Parties: BAIRD v. CARLE.
• Court: Wisconsin Supreme Court

157 Wis. 565

147 N.W. 834

BAIRD

v.CARLE.

No. 152.

Supreme Court of Wisconsin.

June 17, 1914.

Appeal from Circuit Court, Rock County; George Grimm, Judge.

Action by Arthur A. Baird against Norman L. Carle. Judgment for defendant, and plaintiff appeals. Affirmed.Edgar L. Wood, of Milwaukee, for appellant.

Jeffris, Mouat, Oestreich & Avery, of Janesville, for respondent.

BARNES, J.

This action is brought by the plaintiff to recover damages for the alienation of his wife's affections, against the defendant, who is a brother of plaintiff's wife. It was submitted to the jury on a general verdict, by which the jury found for the defendant, and from a judgment entered thereon plaintiff appeals. The errors assigned are on the erroneous admission of evidence, on the charge of the court to the jury, and on the refusal of the court to charge as requested by the plaintiff.

[1] It was held by this court in Jones v. Monson, 137 Wis. 478, 488, 119 N. W. 179, 129 Am. St. Rep. 1082, that parents have the right to advise their married daughters to discontinue their marital relations with their husbands if they honestly believe that conditions are such as to demand separation, provided they act in good faith and have substantial reasons for believing that the advice given is proper. It is also held in that case that, if separation ensues and the husband brings an action to recover damages for the alienation of the affections of the wife, the burden is on him to show that the advice which tended to bring about the separation was given maliciously and in bad faith. The weight of authority elsewhere is to the effect that this rule also extends to a brother or other near relatives of the wife. Powell v. Benthall, 136 N. C. 145, 48 S. E. 598;Trumbell v. Trumbell, 71 Neb. 186, 98 N. W. 683, 8 Ann. Cas. 812;Luick v. Arends, 21 N. D. 614, 132 N. W. 353, 365, and cases cited; Bailey v. Kennedy, 148 Iowa, 715, 126 N. W. 181. This rule is not only humane, but a contrary one would be almost intolerable. We entertain no doubt that the rule of Jones v. Monson, supra, held applicable to parents, should also extend to a brother.

[2] The first assignment of error argued is that the court was wrong in permitting the defendant to show facts in justification of his conduct without having pleaded justification. The assignment is not well made under the rule of law which we adopt. It was incumbent upon the plaintiff to allege that the defendant acted in bad faith and from malicious motives. It was so alleged in the complaint. It was necessary for the plaintiff to prove this allegation in order to make a case, and he did attempt to prove it. The allegation was denied in the answer. On the issue thus made, the defendant had the right to offer any competent proof which would tend to show that he was actuated by good motives and not by malice, and that he had reasonable ground for believing that the advice which he gave his sister was entirely proper under the circumstances.

[3] The plaintiff and his wife were married at Janesville in July, 1910, and immediately went to California to reside. About October 10, 1910, the wife left her husband, ostensibly to pay a visit to her brother at Janesville, Wis. She was apparently timid about talking with her brother about her aversion to her husband. It appears that she consulted a physician at Janesville. In her talk with her physician, Dr. Van Kirk, she told some things which rendered it inadvisable for her to return to and live with the plaintiff. She also advised him that she had not told her brother because she was afraid that he would insist on her going back to California to her husband. The doctor conveyed to the defendant the substance of his conversation with Mrs. Baird. Among other things, he said she told him that she would rather be dead than go back to California, and that she wanted the doctor to talk with her brother about the matter. Mrs. Baird also communicated with Mr. Jeffris, one of the defendant's attorneys in the present action, and related to him her objections to living with her husband. Mr. Jeffris communicated this information to the defendant. After these communications were made, the defendant had a talk with his sister, in which she related to him what she had already told Dr. Van Kirk and Mr. Jeffris. On the trial the defendant was permitted to testify to what Dr. Van Kirk communicated to him, and also to what Mr. Jeffris told him, and likewise to the facts or alleged facts detailed to him by his sister. It is insisted that it was error to admit this evidence because the communications between Mrs. Baird and her physician and lawyer were privileged, and because statements made by her could not be received in evidence against her husband. The evidence was properly admitted. The defendant had the right to advise his sister, provided he acted upon reasonable information and in good faith. In that event he had a complete defense to the action, which would be entirely unavailing to him if he were unable to show the information which he received and the sources from which it came. We do not know of any information that a relative would be more likely to act upon than that conveyed by a doctor or a lawyer in a case of this kind. The question as to whether these parties would be competent witnesses on the trial is not at all involved. Neither is the accuracy or...