Derham v. Derham

• Decision Date: 31 October 1900
• Citation: Derham v. Derham, 125 Mich. 109, 83 N. W. 1005 (Mich. 1900)
• Court: Michigan Supreme Court
• Parties: DERHAM v. DERHAM.

83 N.W. 1005

125 Mich. 109

DERHAM v. DERHAM.

Supreme Court of Michigan

October 31, 1900

Error to circuit court, Shiawassee county; Stearns F. Smith, Judge.

Action by May Rosa Ada Derham against William Derham for alienating the affections of plaintiff's husband. From a judgment in favor of the plaintiff, defendant brings error. Reversed.

Albert L. Chandler (George R. Gold, of counsel) for appellant.

John T McCurdy (Edwin H. Lyon, of counsel), for appellee.

HOOKER J.

The plaintiff recovered a verdict and judgment against her husband's father in an action brought to recover damages for the alienation of her husband's affections from her. The defendant has brought the case here by writ of error. There are many assignments of error, most of which relate to the introduction of testimony. We cannot consider each, and will dispose of the case upon its main points.

The plaintiff was a witness, and testified to conversations in which the defendant asked her husband to leave her, and made threats of disinheriting him if he did not. Other witnesses gave testimony tending to corroborate her, and establish her claim. The plaintiff testified that in 1895 her husband left her, and was away five days, and that during his absence the defendant told her that her husband was not coming back to live with her. Two days later, John her husband, came home, after which they continued to live apparently amicably, together. A day or so before his return, she received a letter from him, which she had searched for, but was unable to find, and thought she must have destroyed. She was permitted to testify regarding it: 'He wrote me, and asked me if I would forgive him. He says, 'I will never do it again.' He says, 'I wouldn't have done it this time if it hadn't been for my father.' He says, 'You know father was mad because I took the horse and went after your mother.' He says, 'I won't listen to them again.' He says, 'I will bring you a ring, umbrella, and clock if you will forgive me;' and when he came he brought those articles.' This testimony was objected to on several grounds: (1) Because the writing was not shown to be that of her husband. (2) It was a confidential communication, and was, therefore, inadmissible, under the statute. (3) It was hearsay as to the statements concerning the defendant. We are of the opinion that this testimony should not have been admitted. It was a communication to the wife by the husband, and it was not competent for her to state it without his consent. Comp. Laws, � 10,213, and cases cited. See Maynard v. Vinton, 59 Mich. 152, 26 N.W. 407, where, in speaking of such a statement, Mr. Justice Champlin said: 'This, according to the statement of the witness, was a communication of the most confidential nature made by his wife to him during the marriage, and under circumstances which brought it within the prohibition of the statute. It was one which, after her death, he could never he permitted to testify to, because it could not then be done with the consent of both. In this respect it stands on the same plane as those communications which are made to a person's confidential adviser,--an attorney, priest, or physician,--who, after the death of the party, is not permitted to disclose such communications. The privilege is the privilege of the person making the communication, and can only be waived by him personally; and the personal representative has no right to waive it, even in the interest of the estate. * * * This statute rests upon public policy, and the seal which the law has fixed upon communications between husband and wife during marriage remains forever, unless removed by the consent of both. The death of one cannot remove the seal of secrecy. If it could, the policy of the law would be defeated.' The letters referred to in McKenzie v. Lautenschlager, 113 Mich. 171, 71 N.W. 489, were from the wife to a friend, and not to her husband, and their introduction does not, therefore, furnish a precedent justifying this testimony. The plaintiff had testified to the fact of her husband leaving home on one occasion, and she said that the defendant had hired him to go. On cross-examination she was asked this question: 'Q. At that time, instead of his being hired to go away, it was understood between you and him that he was going to look up a location, wasn't it? A. He told me he had been hired to go away.' Counsel moved to strike out the answer as not responsive. The statement was one which the law forbids. It was not admissible, and should have been stricken out. A witness--one Joseph Frank--was asked, 'Did you have a conversation, within the time you were working there, with John, about his father wishing he had married some other girl?' He answered: 'Yes. He said his folks did not really like Rose. He had a chance to marry others, and he wished he had.' Henry Parkhurst, plaintiff's father, testified that John came to his place early one morning, after his wife, on the occasion of the birth of plaintiff's first child. He was asked by plaintiff's counsel: 'Q. Was there anything said by John in reference as to why he came so early? A. He said he couldn't get a horse any other time, only before the old gentleman got up. And he said he didn't put the bells on; he put them under the seat, and did not put them on until he got past Jim Kirby's. His wife, Henrietta Parkhurst, was permitted to testify to the same, and that he said, 'The old gentleman did not want me to have the horse.' This last statement was hearsay, and inadmissible. See Edgell v. Francis, 66 Mich. 305, 33 N.W. 501. The former may have been admissible as tending to show his feelings towards the plaintiff. Edgell v. Francis, supra. The jury should have been instructed to discriminate between its value for such a purpose and its use as substantive proof of defendant's relation to the parties. As to that it was hearsay, and, in the absence of specific and emphatic instructions to disregard it, dangerous to the defendant to an extreme degree. The same may be said of the statements in relation to the letter. The plaintiff testified that on one occasion she was sick with 'lung trouble,' and John refused to get a doctor. This, too, was a communication that she should not have been permitted to repeat, but is mentioned here in another connection. The parties having been divorced, John was a witness for the defendant, and was asked about the matter. He testified that he had not thought a doctor necessary. The court ord...