Buckley v. Francis

• Decision Date: 26 December 1931
• Docket Number: 5034
• Court: Utah Supreme Court
• Parties: BUCKLEY v. FRANCIS

6 P.2d 188

78 Utah 606

BUCKLEY v. FRANCIS

No. 5034

Supreme Court of Utah

December 26, 1931

Appeal from District Court, First District, Box Elder County; M. C Harris, Judge.

Action by John Buckley against John W. Francis. Judgment for plaintiff, and defendant appeals.

REVERSED AND REMANDED, with directions.

B. C Call, of Brigham, and Le Roy B. Young, of Ogden, for appellant.

L. Tom Perry and Geo. C. Heinrich, both of Logan, for respondent.

ELIAS HANSEN, J. STRAUP, FOLLAND, and EPHRAIM HANSON, JJ., concur. CHERRY, C. J., dissents.

OPINION

ELIAS HANSEN, J.

This action is founded upon a complaint wherein plaintiff alleged that his wife's affections for him were wrongfully and unlawfully alienated by defendant to plaintiff's damage in the sum of $ 10,000, for which amount plaintiff prayed judgment against the defendant. The defendant by his answer denied generally the allegations of the complaint. Upon issues joined, a trial was had before the court sitting with a jury. The jury returned a verdict against the defendant in favor of the plaintiff in the sum of $ 4,000. Judgment was entered upon the verdict. The defendant appeals. He relies upon twenty-three assignments of error for a reversal of the judgment. Some of the assignments are without merit, are not argued, and hence are deemed waived and need not be discussed in this opinion.

Plaintiff and his wife, Ada Buckley, were married on January 20, 1893. There were eleven children born as the issue of the marriage. On July 11, 1927, Ada Buckley obtained a divorce from plaintiff, upon the ground that he had failed to provide her with the common necessaries of life. The decree of divorce became final on January 11, 1928. The defendant and his wife and the plaintiff and his wife were, for many years prior to the institution of this action, intimate friends, and frequently visited and associated with each other. Evidence was offered and received in support of the allegations of plaintiff's complaint which tended to show that defendant was frequently seen in company with plaintiff's wife prior to the time the decree of divorce was granted; that on a number of occasions the defendant was seen to embrace and kiss plaintiff's wife; that defendant frequently called at the home of the plaintiff while plaintiff was away from home; that defendant and plaintiff's wife were, on numerous occasions, seen unaccompanied by any one else, out riding in defendant's automobile; and that the attentions which defendant bestowed upon plaintiff's wife continued after the decree of divorce was granted. The contention is made on behalf of the defendant that the trial court was in error in admitting testimony relating to the attentions which the defendant bestowed upon Ada Buckley after she secured her divorce from plaintiff.

It has been held in an action by a divorced husband for the alienation of his wife's affections that evidence which tends to show the relations of the defendant and plaintiff's former wife after a divorce is inadmissible in the absence of evidence as to their relations before the separation. Stewart v. Hagerty, 251 Pa. 603, 96 A. 1099, Ann. Cas. 1917D, 483. When, however, as in the instant case, there is evidence which tends to show that the defendant began bestowing his affections upon plaintiff's spouse during the period of the marriage, then and in such case evidence of the relations of the defendant and plaintiff's former wife after the separation of the spouses is admissible to reflect light on the prior relations of the parties. Hardwick v. Hardwick, 130 Iowa 230, 106 N.W. 639; Merrill v. Leisenring, 166 Mich. 219, 131 N.W. 538; Sweikhart v. Hanrahan, 184 Mich. 201, 150 N.W. 833; Phelps v. Bergers, 92 Neb. 851, 139 N.W. 632; King v. Hanson, 13 N.D. 85, 99 N.W. 1085; Sherwood v. Titman, 55 Pa. 77; Keath v. Shiffer, 37 Pa.Super. 573; Rose v. Mitchell, 21 R.I. 270, 43 A. 67; Morris v. Warwick, 42 Wash. 480, 85 P. 42, 7 Ann. Cas. 687. Upon the record in this case, testimony concerning the relations of the defendant and Mrs. Buckley after the granting of the divorce was properly received in evidence for the sole and only purpose, as stated in the court's instructions to the jury, "of aiding you in determining the likelihood, if any, of whether or not defendant was in any way responsible for the separation of plaintiff and his wife as heretofore explained to you in these instructions and cannot be considered by you for any other purpose."

The defendant assigns as error the admission, over his objections and exceptions, two letters marked for identification as Exhibit D and Exhibit E. The letter marked Exhibit E reads as follows:

"Ogden Utah Jan 26 1928

"Dear friend John

"things are progressing a little better in my favor with your help now is what I want you to do is to write 3 more letters stating same as others only word it this way where Said one thing there been a fall. and then obmit outher two words that way of explaining it is to much out of place and it to Serious a thing and to plain for family talk it Should never be put in black and white its will look worse on your part when goeing to family now this is a Serious thing and a Secreard thing and not no gossip of thing to be put in black and white consider you are not perfect dont put in two much hatred and revengeful spirit be a little humble and forgiven spirit for you dont know your doom yet nor what you will come to we dont all Sin Same way have all three and other one to be there to our home right after Sunday School Aurther will bring me up we will be in hurry to get back he coming after some things Thanks friend

"Ada"

As bearing upon the admissibility in evidence of the letter marked Exhibit E, there was before the court at the time of its admission this testimony: In support of the allegations of his complaint, the plaintiff testified that prior to the time the divorce proceedings were instituted, the defendant, Mrs. Buckley and the plaintiff had a conversation in which the defendant stated that he had had intimate relations with Mrs. Buckley, and that Mrs. Buckley admitted such to be the fact. Mrs. Buckley was a witness for the defendant. She testified that upon one occasion when she was sick and had no food for herself and her children the defendant gave her $ 5 with which to buy food, and that at that time he kissed her, but that otherwise there had never been any improper relations between her and the defendant. We quote the following from the transcript while Mrs. Buckley was giving her testimony in chief.

"Q. Did you ever make a confession, or an alleged confession, in the presence of your husband and Mr. Francis, to the effect that you had, or that improper relations had existed between you and Mr. Francis? A. No, sir, I did not.

"Q. Or that you ever fell, or anything of that kind? A. No, sir, I didn't.

"Q. Is that a fact that you had improper relations with Mr. Francis? A. No, sir, I haven't."

On cross-examination Mrs. Buckley was shown the letter marked Exhibit E, and asked if she had written it. She replied that she had. Thereupon the letter was offered and received in evidence. Some statements in the letter tended to modify or contradict the testimony which Mrs. Buckley gave upon her examination in chief, and as such was properly received in evidence as a part of her cross-examination for the sole purpose of aiding the jury in determining the weight, if any, that should be given to her testimony. In the letter it will be observed she referred to "a fall." On her redirect examination Mrs. Buckley testified that at the time she mentioned "a fall" she had in mind the time that the defendant gave her the $ 5 and she permitted him to kiss her.

The letter marked Exhibit D reads as follows:

"Brigham City Jan 22 1928

"Mr J W Francis

"I was down to see my family today and I found my wife broken harted John Francis you know you have broke up my home you came to my home and Maid Love to my wife and won her Love and you told her you could not live without her and she feeles the same that she cannot live without you now just stop and think what a great wrong you don her you commit adultery with her that is you had sectual intercorse with her and that ruined her life and she is broken-harted over it. Now you have got to do something abought it at once or I will handle you by law I dont mean maby so you had better see her at once you know to take a womans virtue is a searious matter so get buesey at once you and her both told me what I have written above I should think a man should tell his wife and not Lye abought it.

"John Buckley"

"Ada R. Buckley."

The foregoing letter is in the handwriting of the plaintiff. So far as appears, the letter was never sent to the defendant. It was produced in court by the plaintiff. Mrs. Buckley testified that, after she secured her divorce, and before this action was begun, the plaintiff came to her and said: "'Ada, if you will just testify in court that John Francis broke up our home I will get at least $ 5,000. I will give you $ 2,000 and keep $ 3,000 and start up in business.' I says 'John, I would rather have John Francis for a dear friend than all the worst money you can stack up.'" The plaintiff did not deny that such a conversation was had.

Mrs Buckley further testified that plaintiff came to her while she was seriously sick as a result of a nervous breakdown; that he asked her to sign some paper which appeared to be a letter, that she did not read the letter, and did not know what was in the letter, but that she signed her name to the letter as requested. She admitted that the letter, Exhibit D, contained her signature. There is no evidence in the record which is in conflict with, or tends to contradict, the testimony of...