Fox v. Fox, 2721

CourtUnited States State Supreme Court of Wyoming
Citation75 Wyo. 390,296 P.2d 252
Docket NumberNo. 2721,2721
PartiesZella FOX, Plaintiff and Respondent, v. Ida E. FOX, Executrix of the Estate of Clarence P. Fox, Deceased, Defendant and Appellant, and Mrs. Paul Norris, Defendant.
Decision Date10 April 1956

Alfred M. Pence, Laramie, for appellant.

Robert N. Chaffin, Joseph F. Maier, of Chaffin & Maier, Torrington, for respondent.

HARNSBERGER, Justice.

The plaintiff below, Zella Fox, sued the executrix of the estate of Clarence P. Fox and a Mrs. Paul Norris to recover from those defendants and each of them money damages for injuries she sustained on November 10, 1952, in an automobile accident alleged to have occurred as a result of defendants' negligence and while plaintiff was riding as a passenger for compensation in the automobile of the deceased. The case was tried to a jury which returned a verdict in favor of the defendant, Mrs. Paul Norris, but in favor of the plaintiff and against the defendant executrix in the sum of $10,000, for which sum with interest and costs of action the court gave plaintiff judgment against the executrix. The executrix has appealed to this court from that judgment, contending that there was reversible error in that:

(1) Plaintiff's husband was improperly permitted to testify over the appealing defendant's objection.

(2) The executrix was required to testify concerning confidential communications between the deceased and herself.

(3) There was a complete absence of evidence showing (a) plaintiff was a passenger for compensation, (b) the deceased was the operator of the automobile at the time of the accident.

(4) Erroneous instructions were given the jury, and proper instructions were offered and refused.

(5) Special findings returned by the jury entitled defendant to judgment notwithstanding the verdict.

It appears the deceased, who was the plaintiff's father-in-law, lived in Nebraska, about eighteen miles east of a Wyoming ranch owned by him and leased under a crop rental arrangement to his son, the plaintiff's husband. Under the terms of the lease the deceased was to receive one-fourth of the crops grown by the lessee. The son, by an instrument in writing, signed by him and upon the margin of which there appears the name of the deceased, contracted in 1952 with the Holly Sugar Corporation to grow 63 acres of sugar beets upon the leased lands, and to harvest and deliver the beets grown, in the factory sheds of the company or at a designated dump. The contract stipulated that the grower was to deliver the beets 'as and when scheduled by the corporation until October 8', and after October 8, all unharvested beets were to be delivered by the grower as soon as possible, such delivery to be completed on or before December 1, the company not being obligated to receive any beets after that date. We might say here, that the exhibit evidencing this contract only purports to be a copy of the original, which makes it impossible for us to be certain whether the name of the deceased appearing in the margin, indicated the actual signature of the deceased or not, but inasmuch as the instrument is appellant's exhibit, and is represented by her as a true copy of the original, we assume it represents the signature of the deceased.

Early in the morning of November 10, 1952, plaintiff's husband directed her to call his mother and see if the deceased could come and get the plaintiff and take her to the home of the deceased in order that plaintiff might get a truck belonging to the deceased and bring it back to the Wyoming ranch to help in hauling to the company some eleven acres of beets which were yet to be delivered under the contract. Incidentally, this truck had been similarly used in former years. The plaintiff thereupon telephoned her mother-in-law (the defendant executrix) as directed. The executrix testified that following this call there was some discussion between the deceased and his wife as to whether the deceased would make the trip at that time or wait until evening. It was decided not to wait until evening, and the deceased instructed his wife to telephone back to the plaintiff and say that he would come after her that morning. The executrix did as she was directed, and thereupon deceased left his home alone, driving his own automobile, the car in which plaintiff was riding at the time of the accident. On leaving his home, the deceased told the executrix that he would get the plaintiff and then return. The evidence as to what happened between approximately eight o'clock that morning, the time the deceased left his home, and the occurrence of the accident, which happened between eight-thirty and nine o'clock that morning, is somewhat meager. The deceased's automobile was seen almost immediately prior to the accident, travelling east--which direction would be going away from the plaintiff's home and toward the deceased's home. A witness who, immediately before the accident, saw and recognized the car as being one owned by the deceased, at first testified it was being driven by a man and said there were two persons in the car. This witness later said her reason for stating the car was being driven by a man was because the person driving was wearing a man's hat. At the scene of the accident the deceased was found dead, lying under his car, and plaintiff was found badly injured, lying a few feet away. We do not detail the evidence with respect to the manner in which the fatal accident occurred, as that is not necessary for a consideration of the matters relied upon by the executrix in this appeal. We should, however, say that there was evidence that the plaintiff's injuries were not only serious but would result in some permanent impairment.

During oral argument before this court, appellant's counsel conceded that the executrix had waived her objection, that plaintiff's husband was improperly permitted to testify over objection, when the executrix subjected the witness to cross-examination as to matters not gone into upon his direct examination. In consequence, appellant's first contention will not be further considered. In re Arnt's Estate, 237 Minn. 245, 54 N.W.2d 333; Pierce v. Fontenelle, 156 Neb. 235, 55 N.W.2d 658, 665; Morris v. Fulcher, 340 Mich. 691, 66 N.W.2d 262; Geisel v. Burg, 283 Mich. 73, 276 N.W. 904; Goodale v. Murray, 227 Iowa 843, 289 N.W. 450, 126 A.L.R. 1121.

Appellant objected to the executrix giving testimony on the ground (a) she was an incompetent witness under the provisions of Sections 3-2602, 3-2605, Wyoming Compiled Statutes 1945, and (b) as the wife of the deceased her testimony was privileged. The pertinent portions of the two sections mentioned above and relied upon, are as follows:

§ 3-2602. 'The following persons shall not testify in certain respects:

* * *

* * *

'3. Husband or wife, except as provided in Section 3681 [§ 3-2605]. * * *' § 3-2605. 'In no case shall the husband or wife be a witness against the other, except in criminal proceedings for a crime committed by one against the other, or in a civil action or proceeding by one or against the other, or an action brought by the husband for criminal conversation with or seduction of his wife, or in an action brought by either husband or wife for the alienation of the other's affections; but they may in all civil and criminal cases be witnesses for each other the same as though the marital relation did not exist.'

Paragraph 3, § 3-2602, Wyoming Compiled Statutes 1945, prior to the passage of Ch. 145, Session Laws of Wyo.1909, read:

'Husband or wife, except as provided in section three thousand six hundred and eighty-one, concerning any communication made by one to the other during coverture, unless the communication was made in the known presence or hearing of a third person competent to be a witness; and the rule shall be the same if the marital relation has ceased to exist.' R.S.1899, § 3682, subd. 3.

Counsel correctly says that when the legislature deleted all but that portion of the statute now remaining, a spouse was rendered incompetent to testify against the other, except in certain instances not applicable here, irrespective of such testimony being related to confidential communications. However, counsel incorrectly reasons that because of this enlarged protection, the duration of the bar against matters not confidential continues after termination of the relationship just the same as in case of confidential communications. This argument fails to take into account the reasons for keeping confidences between husband and wife inviolable even after the termination or dissolution of marriage. It is said, the privilege respecting confidential communications must endure, because otherwise the necessary confidences between husband and wife could not safely be reposed if a breach of that confidence may be compelled after dissolution of termination of the marriage. 58 Am.Jur. 222 § 379. That reason is not present where the testimony is concerned with matter which was neither given nor received in confidence, as is true in this case, and such matter cannot be regarded as confidential. The service of the executrix in transmitting and receiving messages between plaintiff and deceased over the telephone, was nothing more nor less than acts of agency. The responses which the deceased made to messages from the plaintiff were directed by him to be communicated to the plaintiff, a third party. Even the fact that immediately following this exchange of messages, the deceased left his home alone in his automobile, was a circumstance incident to the arrangement the deceased had just authorized, and was not a matter related in any way to a confidential communication nor did it come to the wife's knowledge solely by virtue of the marital relation. It was rather identified with the business of the deceased at hand and which he was transacting with the assistance of his wife.

In 58 Am.Jur. 222, § 380, it is said:

'Wherever a communication,...

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