Higham v. Vanosdol

• Decision Date: 31 March 1885
• Docket Number: 11,501
• Parties: Higham v. Vanosdol
• Court: Indiana Supreme Court

101 Ind. 160

Higham v. Vanosdol

No. 11,501

Supreme Court of Indiana

March 31, 1885

From the Switzerland Circuit Court.

The judgment is affirmed, with costs.

J. A Works, L. O. Schroeder and W. R. Johnson, for appellant.

A. C Downey, for appellee.

OPINION

Mitchell J.

Benjamin F. Vanosdol brought his complaint in the court below against Thomas Higham, alleging therein that the defendant, on the 17th day of September, 1882, well knowing that Clara Vanosdol was the plaintiff's wife, unlawfully persuaded, procured and enticed her to leave his home and society, and after carrying her away, with intent to injure the plaintiff, wrongfully debauched and had carnal knowledge of her, without plaintiff's consent, and that by the means above mentioned he had alienated her affections from plaintiff and deprived him of her society, etc., to his damage, etc.

The questions in the record relate to rulings of the court in excluding certain communications had between the husband and wife, and certain declarations made by the wife to others, and in giving and refusing certain instructions to the jury.

The evidence showed that Vanosdol and his wife were married on the 26th day of March, 1882, he being twenty-two and she seventeen years of age at the time. They lived together, so far as appears, amicably until the 17th day of September of the same year, when, without any previous intimation of dissatisfaction with her husband, she clandestinely eloped with the defendant, Higham, an unmarried man, about forty years old. The evidence tends to show that after a number of secret interviews had with the wife, Higham took her in his buggy in the evening, in the absence and without the knowledge of her husband, and drove rapidly with her to the Ohio river, where, procuring an acquaintance to row them over, they crossed the river into Kentucky where they remained in various places, Newport and Louisville among the rest, for about ten days when they returned to Indiana. While the circumstances shown in evidence were almost irresistible, there was no direct proof of adultery, or that they occupied the same room with each other at night during their absence. The plaintiff and his wife never lived together afterwards. The trial resulted in a verdict and judgment for the plaintiff for $ 3,250.

At the trial the plaintiff was a witness in his own behalf, and on cross-examination he was asked whether or not at the time he met his wife after her return from the trip taken with the defendant, she did not say to the plaintiff, "If you will go with me and my father we will take you to all the places where Mr. Higham and I stopped, and I will prove to you that I have been guilty of nothing except going away with Mr. Higham," and whether he did not say in reply to her: "I have full confidence in you; I believe what you say."

Objection was sustained to this question, and it is now insisted by counsel that it was competent evidence for the purpose of showing that the plaintiff did not then believe his wife guilty of adultery.

The evidence was properly excluded on two grounds:

1. Whatever conversation was had on the occasion referred to between the plaintiff and his wife constituted such communication between husband and wife as fell directly within the terms of the last clause of section 497, R. S. 1881. The wife could not have testified if she had been called as a witness in the defendant's behalf, to any communication made by her to her husband, or by him to her, on the occasion referred to, and it is clear that the husband, for the same reason, could not be compelled to give in evidence in the defendant's favor the conversation imputed to them in the question propounded. Whether the defendant had been guilty of adultery or not with the plaintiff's wife could neither be proved nor disproved by any communication made by the wife to the husband. Dye v. Davis, 65 Ind. 474; Kingen v. State, 50 Ind. 557.

2. As there was no inquiry made of the plaintiff on his direct examination, and nothing said by him concerning any conversation had with his wife after her return, the testimony objected to was properly excluded, on the additional ground that it was not proper cross-examination.

The next point argued is that the court erred in excluding certain declarations made by the plaintiff's wife to Mrs. Littlefield.

The point is presented in the bill of exceptions in this way: "And here the defendant offered to prove in mitigation of damages by the witness, Mrs. Belle Littlefield, that at her house on the day on which she is alleged to have eloped with the defendant, and before she started, she had a conversation with plaintiff's wife, in which she said to this witness: 'My husband does not treat me like he should treat a wife, and I can not and will not return to him; I shall never live with him any more; I have left him for good.'" This was objected to.

It does not appear that any question was asked the witness, and objected to by the plaintiff; nor does it appear what the witness would have testified to, or whether she would have testified to anything concerning the proposition which was made. The exclusion of testimony can only be made available by asking some pertinent question of a witness on the stand, and, if objection is made, stating to the court what testimony the witness would give in answer to the question proposed. Lewis v. Lewis, 30 Ind. 257; Adams v. Cosby, 48 Ind. 153; Baltimore, etc., R. R. Co. v. Lansing, 52 Ind. 229. For the same reason no question is available in respect to the offer made in relation to the other witness, Littlefield.

The testimony was, however, inadmissible, and even if the question had been properly made the ruling of the court was right. Where declarations are made by a wife, in connection with an act done by her, as the exhibition of marks or injuries upon her person, such declarations, if they are explanatory of the manner, or tend to show by whom the injury was inflicted, are received, as in Gilchrist v Bale, 8 Watts 355; Berdell v. Berdell, 80...