Berlin ex rel. Berlin v. Berlin
| Decision Date | 31 March 1873 |
| Parties | ANN BERLIN by her next friend, DAVID M. BERLIN, Appellant, v. DAVID BERLIN, Respondent. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Mauro and Laughlin, for Appellant.
Krum and Patrick, for Respondent.
The testimony of the wife and that of the husband are madmissible in this case. The removal of a wife's disqualifications to be a witness by our statute on the ground of her interest in the event of the suit, does not remove her disability as a witness against her husband on the ground of public policy. (Johnson vs. Quarles, 46 Mo., 429; Hardy vs. Matthews, 42 Mo., 406; Dwelly vs. Dwelly, 46 Maine, 378; Mary J. Hosbrouck vs. Vandervoort, 4 Sandford, 596; 5 Selden, 153; Bird vs. Hueston, 10 Ohio, St., 418; 5 Barb., 156; Erwin vs. Smaller, 2 Sandford, 340; Wilson vs. Sheppard, 28 Ala., 623; Alcock vs. Alcock, 12 Eng. L. & Eq., 354; Manchester vs. Manchester, 24 Vt., 649.)
It cannot be said the facts of this case warranted Mrs Berlin's testimony, ex necessitate.
This was a proceeding instituted in the St. Louis Circuit Court on the part of Ann Berlin by her next friend David M. Berlin, against David Berlin for support and maintenance under § 1, Chapter 94, Wagner Statutes.
At the trial Ann Berlin was introduced on the part of plaintiff as a witness, and was objected to as such on the ground that, being the wife of defendant, she was incompetent to testify against him. This objection was overruled, the witness permitted to testify and defendant excepted. It was then at tempted on the part of plaintiff to prove by said witness certain conversations between herself and husband and certain admissions made by him to her. This testimony was also objected to by defendant, on the ground that witness, being his wife, could not testify to such conversations or admissions. This objection was also overruled and the witness permitted to testify in the manner indicated, and defendant excepted. The court rendered judgment against the defendant for the support and maintenance of the wife, and defendant, after moving unsuccessfully for a new trial by appropriate motion for that purpose, in which was specified among others the grounds aforesaid, appealed to General Term where the judgment of Special Term being reversed, the plaintiff brings this case here by appeal.
The witness was clearly incompetent as to any conversations had with defendant, or as to any admissions made to her by him.
Communications of husband and wife inter sese are privileged, and are sedulously guarded by the seal of that absolute inviolability which the law places upon the hallowed intimacies of the marital relation. So strictly has the law, on the grounds of public policy, enforced the observance...
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