Haas v. Fitzpatrick

• Court: Pennsylvania Superior Court
• Writing for the Court: Parker, J.
• Citation: Haas v. Fitzpatrick, 117 Pa. Super. 21, 177 A. 326 (Pa. Super. Ct. 1935)
• Decision Date: 01 March 1935
• Docket Number: 130-1934
• Parties: Haas v. Fitzpatrick, Appellant

177 A. 326

117 Pa.Super. 21

Haas v. Fitzpatrick, Appellant

No. 130-1934

Superior Court of Pennsylvania

March 1, 1935

Argued November 21, 1934

Appeal by defendant from judgment of C. P., North-umberland County May T., 1932, No. 390, in the case of Melvin L. Haas v Dennis Fitzpatrick.

Trespass for alienation of affections. Before Morganroth, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in amount of $ 2,000. Motions for defendant for judgment n. o. v. for new trial refused and judgment entered for plaintiff. Defendant appealed.

Errors assigned, among others, were various rulings on evidence.

Judgment reversed with a venire facias de novo.

J. A. Welsh, and with him F. B. Moser, for appellant.

Charles C. Lark, and with him Albert Lloyd, for appellee.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Parker, J.

The plaintiff obtained a judgment in an action of trespass brought against his wife's father to recover damages for the alienation of the affections of the plaintiff's wife. In this appeal the assignments of error concern the right to a judgment n. o. v., or to a new trial.

In view of the conclusions at which we have arrived, we will first consider the assignments of error supporting the defendant's right to a new trial. He assigns as error in this particular the receipt over his objection of a portion of plaintiff's testimony, which it is asserted attacked the character and conduct of the wife. The plaintiff, for the purpose of showing the existence of affection between his wife and him and its subsequent alienation by the evil designs of the defendant, testified that they were married in 1925; that they lived happily together for a time, but after a period of domestic peace and consideration for him upon the part of the wife, she refused without cause to cook his meals or room with him, used unkind words toward him, absented herself from his home, threatened his life, and finally wilfully and maliciously deserted him without justification; and that, notwithstanding his urgent requests, she has refused a reconciliation.

By the Act of May 23, 1887, P. L. 158, § 5, cl. (b) (28 PS 316), it is provided: "Nor shall either husband or wife be competent or permitted to testify to confidential communications made by one to the other, unless this privilege be waived upon the trial;" and by cl. (c) (28 PS 317), as amended: "Nor shall husband and wife be competent or permitted to testify against each other," subject to certain exceptions not here important. That a husband plaintiff in a suit for alienation of his wife's affections is a competent witness for some purposes is definitely settled by the late case of Schreiber v. Schreiber, 310 Pa. 173, 165 A. 41. It therefore becomes necessary to consider the limits of admissible testimony upon the part of a husband in such cases. "At common law husband and wife are incompetent to testify against each other. This rule has never been relaxed; on the contrary, it has been reinforced and guarded from invasion by statutory enactment": Canole v. Allen, 222 Pa. 156, 159, 70 A. 1053. "Restrictions so imposed [cl. (c)] are not subject to the pleasure of the parties or the power of the courts. In such case this court will take notice of the error whether assigned or not": ibid. (p. 158). The rule is not limited to cases to which either spouse is a party: Snyder v. Snyder, 6 Binn. 483, 488; Bell v. Throop, 140 Pa. 641, 21 A. 408; Cornelius v. Hambay, 150 Pa. 359, 24 A. 515. These restrictions apply not only when they affect property rights of the other spouse (McBride's Appeal, 72 Pa. 480; Gross v. Reddig, 45 Pa. 406; Moore v. Moore, 165 Pa. 464, 30 A. 932; Alcorn v. Cook, 101 Pa. 209; Pleasanton v. Nutt, 115 Pa. 266, 8 A. 63), but also to testimony reflecting on the character or conduct of the other spouse as, for example, offer to prove adultery on the part of a husband's paramour though it be not directly given against the husband (Cornelius v. Hambay, supra), and where the testimony tends to show moral turpitude, fraud and collusion (Bell v. Throop, supra).

Ulrich's Case, 267 Pa. 233, 109 A. 922, is almost directly in point. There a wife petitioned the court to be declared a feme sole trader, and it became necessary for the wife to show that the husband had deserted his wife or failed to support his wife and children. It was held in an opinion by Mr. Justice (now Chief Justice) Frazer that the wife was not a competent witness for that purpose. (By the Amendment of 1927, the wife was made a competent witness in proceedings brought by a wife to be declared a feme sole trader.) It follows that the husband in this cause was not a competent witness to prove a malicious and wilful desertion by his wife, and even more clearly, the testimony of the husband that his wife had threatened his life was not only incompetent but tended to prejudice the jury.

The trial court also sustained the objection of the plaintiff to an offer of the defendant to rebut by the wife's testimony such part of plaintiff's evidence as attacked her character or conduct. The Act of May 8, 1907, P. L. 184 (28 PS 319) is, in part, as follows: "In all civil actions brought by the husband, the wife shall be a competent witness in rebuttal, when her character or conduct is attacked upon the trial thereof, but only in regard to the matter of her character or conduct." "The effect of this statute is to make the wife a competent witness to rebut the attack upon her character or conduct, when her character or conduct is attacked upon the trial of an action brought by her husband. This statute does not make the wife generally competent as a witness in such actions, but only in regard to the matter of her character or conduct": Keath v Shiffer, 37 Pa.Super. 573, 580. It being definitely settled, as we have shown, that a charge of wilful and malicious desertion is an attack upon the character and conduct of the wife, it...