Hafer v. Lemon, Case Number: 28015

• Decision Date: 05 April 1938
• Docket Number: Case Number: 28015
• Citation: 1938 OK 240,79 P.2d 216,182 Okla. 578
• Parties: HAFER v. LEMON
• Court: Oklahoma Supreme Court

1938 OK 240

79 P.2d 216

182 Okla. 578

HAFER v. LEMON

Case Number: 28015

Supreme Court of Oklahoma

Decided: April 5, 1938

Syllabus

¶0 1. WITNESSES - Competency - Husband and Wife - Effect of Termination of Marriage Relation.

Section 272, O. S. 1931, does not prevent one spouse, after the marriage relation has terminated, from testifying in a case in which the other is a party as to independent facts within the knowledge of the witness, and not coming within the definition of privileged communications.

2. HUSBAND AND WIFE - Alienation of Affections - Burden of Proof on Plaintiff.

In an action by either the husband or wife against the parents or grandparents of the other for alienation of affections, the burden is upon plaintiff to show that the interference of defendants caused the alienation and that such interference was actuated by malice; and the motive of defendants in such case is presumed to be good until the contrary is shown.

3. SAME - Action Against Parents or Grandparents of Divorced Wife - Testimony of Divorcee Admissible to Show Intent of Defendants in Coming to Home.

In an action by the former husband against the parents or grandparents of his divorced wife for alienation of her affections, where defendants are charged with coming to plaintiff's home with the malicious intent to take the wife away and cause a separation, the offered testimony of the wife purporting to show that defendants had come at the particular time in response to her request and for purposes other than charged, was competent, and admissible on the question of intent of the defendants.

4. SAME - Testimony of Divorced Wife as to Ill Treatment and Threats by Husband and That Defendants Knew of Such Ill Treatment Held Admissible.

In an action by the husband against the parents or grandparents of his divorced wife for the alienation of her affections, the threat of the husband, made during the marriage relation, to commit a criminal offense against the wife is not classified as a privileged communication, or a "communication made by one to the other during the marriage," within the meaning of section 272. O. S. 1931, and the testimony of the wife in such case as to specific ill treatment suffered by her at the hands of the plaintiff during the marriage is admissible as a circumstance tending to show that the plaintiff, and not defendants, caused the separation and alienation, and her testimony that defendants were aware of such ill treatment prior to their alleged malicious interference is admissible as tending to negative malice on their part.

5. SAME - Proof of Malice by Circumstantial Evidence in Action Against Parents-in-Law.

In an action against parents-in-law for alienation of affections, malice may be established by circumstantial evidence.

6. ABATEMENT AND REVIVAL - Burden of Proving Another Action Pending at Time Plea in Abatement Filed.

One who files a plea in abatement on the ground of another action pending is charged with the burden of proving that the prior action was pending at the time the plea was filed.

Appeal from District Court, Caddo County; Will Linn, Judge.

Action by Reford Lemon against W.M. Hafer and H.C. Hafer for alienation of affections. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.

Pruett & Wamsley, for plaintiffs in error.

Ted Morgan, for defendant in error.

GIBSON, J.

¶1 Reford Lemon commenced this action in the district court of Caddo county against W.M. Hafer and H.C. Hafer to recover damages for the alleged alienation of the affections of his wife, Ruby Lemon. From a judgment upon a verdict for plaintiff, the defendants have appealed. The parties are here referred to in the order of their appearance at the trial.

¶2 W.M. Hafer and H.C. Hafer are the grandfather and father, respectively, of the said Ruby Lemon. Plaintiff charges that the defendants, acting separately and together, and at a time when plaintiff and his wife were living happily together and enjoying mutual love and affection, and the service of one to the other, contrived their separation and did by false and fraudulent representations persuade his said wife to leave him and obtain a divorce.

¶3 The main issues were, in substance, that defendants came to the home of plaintiff, and maliciously and without plaintiff's consent, took the said Ruby Lemon away and removed her to the home of defendant H.C. Hafer; that thereafter the defendant W.M. Hafer falsely and maliciously swore to an information charging plaintiff with threatening the life of his wife, procured his arrest on said charge, and exhibited him handcuffed and under arrest before her, and thereafter had him placed in jail; that said defendants, taking advantage of the present nervous and excitable condition of the said Ruby Lemon caused by pregnancy, succeeded in influencing and persuading her to believe the false and malicious charges aforesaid, thereby causing her to cease to love plaintiff and to lose her affection for him.

¶4 Defendants assign as error the action of the trial court in refusing and ruling out certain alleged competent and legal evidence offered on the part of defendants.

¶5 This assignment deals with the testimony of Ruby Lemon, who was called as a witness for defendants. The controversy arising over the proffered evidence was occasioned primarily by the court's interpretation and application of section 272, O. S. 1931, the material provisions of which are as follows:

"The following persons shall be incompetent to testify: * * * Husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have a joint interest in the action; but in no case shall either be permitted to testify concerning any communication made by one to the other during the marriage, whether called while that relation subsisted, or afterwards."

¶6 At the time of the trial Ruby Lemon was not the wife of Reford Lemon. They had theretofore been legally divorced. The defendants, in view of this circumstance, assumed the position that Ruby Lemon was a competent witness for every purpose and could testify to all material matters coming to her knowledge during the marital relationship, except privileged communications passing between her and her husband during that period. The trial court was not in agreement with this view, but restricted the witness within the narrow scope to which a former spouse is ordinarily limited by reason of the statute. This ruling constituted error.

¶7 In the absence of agency or joint interest of husband and wife, one cannot qualify as a witness in an action to which the other is a party. But the competency of either depends upon the relationship at the time of the trial; the application of the statute, is relaxed if the marital relationship has ceased to exist. St. Louis & S. F. Ry. Co., v. Goode, 42 Okla. 794, 142 P. 1185. The rule as there applied in the ordinary case is stated as follows: "Neither the statute nor the common law prevent one spouse, after the marriage relation has terminated, from testifying, in a case in which the other is a party, as to independent facts, within the knowledge of the witness, and not coming within the definition of privileged communications."

¶8 See, also, Adkins v. Wright, 37 Okla. 771, 131 P. 686; Sands v. David Bradley & Co., 36 Okla. 649, 129 P. 732. Reason and the weight of authority favor this view. 70 C. J. 125.

¶9 Thus it is seen that in the ordinary case, where the marital relation no longer exists, the statute is relaxed, allowing the former husband or wife to give any competent testimony material to the issues, excluding only that evidence which may be classed as "concerning any communication made by one to the other during the marriage," or privileged communications.

¶10 In actions for alienation of affections, the statute has still a more limited application. Many communications, though ordinarily classed as privileged, are received as competent evidence. 70 C. J. 387, sec. 516. Such cases, with respect to the admission of evidence, occupy a position peculiar to themselves. As said in Worth v. Worth (Wyo.) 49 P.2d 649, as regards the rules governing the admissibility of evidence, "cases of alienation of affection are sui generis."

¶11 The paramount question in such case is whether the affections were actually alienated through the fault of the defendant; that is, the actual alienation of affection is the gist of plaintiff's action. Mussellem v. Frenn, 101 Okla. 45, 225 P. 370. If the action is against the parents of the spouse whose affection is allegedly alienated, there must be shown not only an alienation caused by their interference, but plaintiff must prove improper motive amounting to malice on their part. Plaintiff is without a cause of action if the motive was free from malice; the motive is presumed to be good until the contrary is proved. Brison v. McKellop, 41 Okla. 374, 138 P. 154. We apply this rule to grandparents (see 30 C. J. 1145, sec. 1020); it is stated in that case as follows:

"In an action by either the husband or wife against the parents of the other for alienation of affections, it must appear that there had been a direct interference on defendant's part sufficient to satisfy the jury that the alienation was caused by the defendants, and the burden of proof is upon the plaintiff to show such interference.

"And where the father or mother is charged with the alienation, the quo animo is said to be the important consideration, although it appears that a parent directly interferes, as by giving to a son or daughter advice on his or her domestic affairs, the other will have no cause of action against the parent, though the result of the parent's action is the alienation of the husband's or wife's affection, if such parent acts in good faith; and the motive of the parent in such case is presumed to be good until the contrary is proved."

¶12 In the instant case plaint...