Johnson v. Richards

• Decision Date: 18 December 1930
• Docket Number: 5317
• Citation: 50 Idaho 150,294 P. 507
• Parties: ANNA D. JOHNSON, Respondent, v. ELSIE SCHMIDT RICHARDS, Appellant
• Court: Idaho Supreme Court

294 P. 507

50 Idaho 150

ANNA D. JOHNSON, Respondent, v. ELSIE SCHMIDT RICHARDS, Appellant

No. 5317

Supreme Court of Idaho

December 18, 1930

HUSBAND AND WIFE - ALIENATION OF AFFECTION - EVIDENCE - WITNESSES-CROSS-EXAMINATION.

1.In wife's action for alienation of husband's affections it was proper to interrogate wife concerning quarrels with husband during alleged marital happiness.

2.Wide latitude should be allowed in cross-examination.

3.Cross-examination of wife as to quarrels with husband occurring between date defendant was alleged to have interrupted marital happiness and date husband left wife held proper.

4.Where witness had already answered cross-examination questions in effect, sustaining objection thereto held not error.

5.Question whether wife, suing for alienation of affections reprimanded third party for her conduct toward wife's husband, held not proper cross-examination.

6.Question whether husband requested wife suing for alienation of affections to leave him held not proper cross-examination.

7.Question whether wife, suing for alienation of affections reprimanded third party for being responsible for marital troubles, held not proper cross-examination.

8.Question whether wife, suing for alienation of affections had not complained of her husband's keeping company with other women, held not proper cross-examination.

9.In wife's action for alienation of affections, cross-examination question held objectionable as duplicitous and improperly assuming there was trouble over wife's extravagances.

10.Question whether wife, suing for alienation of affections, had quarrels on account of her attempting to poison husband, held improper as duplicitous and assuming facts.

11.In wife's action for alienation of affections, excluding property settlement agreement in which wife's right to support from husband was merged held error.

12.Instruction that loss of support was element of damage in wife's action for alienation of affections held error, where wife's right to support was merged in property settlement.

13.Property settlement between husband and wife did not release defendant from liability for alienation of affections, if she deprived wife of husband's affections.

14.Wife need not suffer pecuniary loss to be able to maintain action for alienation of husband's affections.

15.Depositions of conduct of defendant in alienation suit and plaintiff's husband after husband's affections were completely alienated held admissible.

16.Husband's declarations imputing to wife cruel treatment or want of conjugal affection are not admissible in suit for alienation of affections, unless made before husband was under influence of defendant.

17.Husband's declarations showing his state of mind toward wife, made before any overt act showing defendant's influence over husband has taken place, are admissible as res gestae in suit for alienation of affections.

18.After overt act showing influence of defendant, sued for alienating affections, over husband has occurred, husband's declarations showing state of mind toward wife are inadmissible as hearsay.

19.Husband's declarations concerning wife, when admissible in wife's suit for alienation of affections, are competent only to indicate husband's state of mind.

20.Excluding testimony regarding husband's declarations offered to show his state of mind toward wife suing for alienation of affections held not error.

21.Testimony of witnesses, other than wife suing for alienation of affections and husband, showing specific quarrels between wife and husband, even though remote, held admissible.

22.Evidence of marital unhappiness held admissible, in wife's action for alienation of affections, to mitigate damages.

23.Evidence that wife accused three different women of being too familiar with her husband held admissible in alienation of affections suit.

24.Statement of husband indicating unhappy domestic life held competent, in alienation of affections suit, to show lack of affection by husband for wife before defendant's interference.

25.Testimony that from four to six months prior to alleged date of alienation, husband stated extravagance of wife suing for alienation of affections had him broke held inadmissible.

26.Checks given by husband to minor daughter and wife suing for alienation of affections held admissible as tending to show compliance with property settlement.

27.Presumption cannot be based on presumption.

28.Wife's right to recover for alienation of affections is based on loss of husband's conjugal society.

29.In wife's action for alienation of affections, mortality tables held inadmissible.

30.Generally, in absence of statute, character of party to civil action is not proper subject of inquiry.

31.In wife's action for alienation of husband's affections, defendant's general reputation for chastity held inadmissible, notwithstanding allegation of adultery.(C. S., sec. 8040.)

APPEAL from the District Court of the Third Judicial District, for Ada County.Hon. Jay L. Downing, Judge.

Action for damages for alienation of affections.Judgment for plaintiff.Reversed and remanded.

Reversed and remanded, with directions.Costs to appellant.

Frawley & Barnes and F. A. Hagelin, for Appellant.

The gist of an action for alienation of affections is not the separation of the spouses but the loss of affection.(Annarina v. Boland,136 Md. 365, 111 A. 84.)

An actual physical separation of the spouses in connection with the alienation is not essential to the right of action, whether the action is by the husband or by the wife, neither is a physical debauchment of plaintiff's spouse a necessary element in an alienation suit.(30 C. J., pp. 1123, 1124, secs. 979,980.)

It was error to deny the defendant the right to cross-examine plaintiff relative to previous quarrels and lack of harmony for the purpose of showing the state of feelings between the husband and the wife, which was one of the vital issues of the case.(Smith v. Sheffield,58 Utah 77, 197 P. 605; 1 Nichols' Applied Evidence, Alienation of Affections, par. 44;Cole v. Johnson, 103 Ore. 319, 205 P. 282.)

Where the state of a person's affections or feelings is material, the declarations of such person as to his or her own state of affections is admissible.(Cripe v. Cripe,170 Cal. 91, 148 P. 520;Horowitz v. Sacks,89 Cal.App. 336, 265 P. 281;30 C. J. 1126;Annarina v. Boland, supra.)

A separation agreement whereby the wife releases all claims against the husband, including the right to demand any aid or support from him, bars recovery for loss of his aid and assistance, although not for loss of her love and affection.(Patterson v. Hill,212 Mich. 635, 130 N.W. 352.)

By alleging and offering proof of criminal conversation and of adultery on the part of appellant, neither of which was essential to respondent's cause of action, respondent put in issue the character of appellant, and it thereby became competent for her to introduce evidence of her general reputation for morality and chastity.(Parker v. Newman,200 Ala. 103, 75 So. 479;C. S., sec. 8040;Nickolay v. Orr,142 Minn. 346, 6 A. L. R. 1048, 172 N.W. 222;Hein v. Holdridge,78 Minn. 468, 81 N.W. 522;1 Wigmore on Evidence, sec. 64.)

Martin & Martin, for Respondent.

A defendant's acts need not be the sole cause of the separation, but if they are the controlling cause, then he is liable in damages for his acts and conduct.(30 C. J., 1125;Disch v. Closset,118 Ore. 111, 244 P. 71(seecases on p. 73).

Statements and declarations of the alienated spouse made after the acts of alienation commenced or after the separation of the spouses are hearsay and not admissible in evidence.(Luick v. Arends,21 N.D. 614, 132 N.W. 353;Spangenberg v. Christian, 151 Minn. 356, 186 N.W. 700.)

A separation agreement between a husband and wife cannot be used by a defendant in an alienation of affections case as a defense for the loss of aid and assistance of the husband.(Mohn v. Tingley,191 Cal. 470, 217 P. 733.)

VARIAN, J. Givens, C. J., and Budge, Lee and McNaughton, JJ., concur.

OPINION

VARIAN, J.

Action by a wife for alienation of husband's affections, alleging adultery in aggravation of damages.The complaint alleged marriage of plaintiff in Nebraska in 1901; that she and her husband came to Boise, Idaho, in 1913, where they lived and cohabited together happily as husband and wife until October, 1922; that about said last-named date the defendant conceived the desire and design of wrongfully contriving and intending to injure plaintiff and deprive her of the comfort, society, assistance, and support of her husband by maliciously enticing him away from her and their residence; that defendant persuaded the husband to desert and abandon plaintiff, and stay with defendant, on or about September 11, 1926, at her home where they carnally knew each other; that in April, 1927, defendant, for the purpose of depriving plaintiff of the comfort, society, assistance, and support of plaintiff's said husband, enticed him to go with her to Seattle and Tacoma in the state of Washington, where they illegally lived and cohabited together and carnally knew each other as husband and wife.Defendant denied the allegations of the complaint, and the jury found for plaintiff.The court denied defendant's motion for a new trial, and she appeals from the judgment and the order denying her motion for a new trial.

Many assignments of error go to the court's sustaining objection to questions propounded to respondent on cross-examination concerning continuous quarrels and marital difficulties between her and her husband occurring before October, 1922, the date fixed by respondent when their marital happiness was...