Harper v. Harper

• Decision Date: 01 May 1918
• Docket Number: 1566.
• Citation: 252 F. 39
• Parties: HARPER v. HARPER.
• Court: U.S. Court of Appeals — Fourth Circuit

252 F. 39

HARPER v. HARPER.

No. 1566.

United States Court of Appeals, Fourth Circuit.

May 1, 1918

[Copyrighted Material Omitted]

F. L Bushong, of Charlestown, W. Va., and C. N. Campbell, of Martinsburg, W. Va., for plaintiff in error.

Forrest W. Brown, of Charlestown, W. Va., and Herbert S. Larrick, of Winchester, Va. (Ward & Larrick, of Winchester, Va., and Brown & Brown, of Charlestown, W. Va., on the brief), for defendant in error.

Before PRITCHARD and WOODS, Circuit Judges, and McDOWELL, District judge.

WOODS Circuit Judge.

The first count of the declaration of Charles W. Harper against his brother, Joseph W. Harper, alleges criminal conversation with plaintiff's wife, Mary E. Harper, on November 8 1915, and on other days unknown, resulting in alienation of her affections and depriving plaintiff of the benefits of the marriage relation. The second count alleges alienation of the wife's affections by persuasion and malicious statements concerning the plaintiff, and criminal conversation from July, 1907, to November, 1915, as aggravation of the wrong. The action was commenced on July 18, 1916. Defendant's demurrer having been overruled, and his demand for a bill of particulars denied, the trial resulted in a verdict and judgment in favor of the plaintiff.

There was no error in overruling the demurrer for misjoinder of the causes of action. In trespass on the case, two causes of action growing out of substantially the same transactions and depending on substantially the same evidence may be joined. Galizian v. Henry, 71 W.Va. 292, 76 S.E. 440.

The discretion of a trial judge in refusing to require a bill of particulars will not be disturbed, unless inspection of the whole record clearly convinces the appellate court that the refusal resulted in injustice. That is not the case here. Both counts of the declaration relate to the same transactions, and in the second count is set forth in detail the story of the alleged wrongful acts committed by the defendant, depended on to support both counts.

Evidence was introduced, both direct and circumstantial, tending to prove the alleged criminal conversations continued from time to time, and the separation and divorce of plaintiff and his wife in consequence of it. The defendant, testifying in his own behalf, denied all the acts of wrong attributed to him, and introduced evidence tending to corroborate his denial. An important witness for the plaintiff was his divorced wife, who testified to her sexual intimacy with defendant, his advice to her to obtain a divorce, and his promise to marry her. Her daughters, Edna Harper and Mrs. Lyle, also testified to facts tending to indicate improper relations between the defendant and plaintiff's wife. On the issue thus made, Edna Harper and Mrs. Lyle were allowed to testify to confessions of Mrs. Harper of her acts of sexual intimacy with the defendant, made some time after the alleged occurrences. This was hearsay evidence of a very objectional kind, intended to bolster the direct testimony of plaintiff's witnesses on the vital issue of the case. The confessions imputed did not accompany the acts, and were not associated with them, and were incompetent. Cochran v. Cochran, 196 N.Y. 86, 89 N.E. 470, 24 L.R.A. (N.S.) 160, 17 Ann.Cas. 782; Sanborn v. Gale, 162 Mass. 412, 38 N.E. 710, 26 L.R.A. 864; 13 R.C.L. 1491.

Mrs. Harper testified to sending a telephone message to defendant to meet her in Winchester. It was clearly competent for plaintiff to testify to the contents of this message, handed to him by mistake, because the sending of a message by Mrs. Harper to the defendant was under the circumstances an act of probative value, taken in connection with other evidence.

The suspicions of the daughters of plaintiff as to the improper relations of their mother and the defendant were not competent; but the error of admitting them was immaterial, as suspicions were inevitable, if their testimony was true.

Plaintiff testified to finding scraps of a letter written to his wife by the defendant, which he read by piecing together the scraps. Mrs. Harper having testified that she took the letter from her husband's trunk and burnt it, evidence of the compromising contents was competent. The same rule applies to other letters written by defendant to plaintiff's wife, which she said she had burned.

Limiting testimony as to the drunkenness of the plaintiff on occasions when his wife was present was a proper exercise of discretion as to remoteness of the bearing of such testimony on the relations of husband and wife.

The plaintiff admitted an assault upon his wife in July, 1907, upon finding her and his brother, as he testified, improperly caressing each other; but he denied any other assault. The defendant offered as proof of another assault plaintiff's plea of guilty to the charge of assault on his wife in January, 1908, in response to a charge appearing on the docket of a justice of the peace. In the absence of any independent evidence of another assault, the testimony was properly rejected, on the ground that it may well have related to the assault committed in 1907, or at any time before the charge was made to the justice.

Evidence of sexual intercourse between husband and wife before marriage was properly held to be too remote to prove unchastity of the wife with other men after marriage.

The mere negative testimony of a neighbor that he observed no impropriety between defendant and plaintiff's wife was of no probative value, and was properly excluded.

The testimony of Mrs. Mary E. Harper as it appears in the record contains this question...