King v. Hanson

• Citation: 99 N.W. 1085,13 N.D. 85
• Decision Date: 16 April 1904
• Court: United States State Supreme Court of North Dakota

99 N.W. 1085

13 N.D. 85

IRENE C. KING v. MARY D. HANSON

Supreme Court of North Dakota

April 16, 1904

Appeal from District Court, Towner county; Cowan, J.

Action by Irene C. King against Mary D. Hanson (now Mary D Thompkins). Judgment for plaintiff. Defendant appeals.

Affirmed.

Guy C H. Corliss, for appellant.

A wife cannot maintain an action against a person for alienating her husband's affections, unless her husband has been enticed from her. The gist of the action is not the loss of affection, but the loss of consortium. Betser v Betser, 58 N.E. 249; Houghton v. Rice, 54 N.E 843; Neville v. Gile, 54 N.E. 841; Humphrey v Pope, 54 P. 847; Haynes v. Nowlin, 29 N.E. 389; 1 Bish. on Mar. & Div., sec. 1358; Ash v. Prunier, 105 F. 722; Lockwood v. Lockwood, 70 N.W. 784; Crocker v. Crocker, 98 F. 702; Kroessin v. Keller, 62 N.W. 438; Westlake v. Westlake, 34 Ohio St. 621; Bennett v. Bennett, 23 N.E. 17; Nichols v. Nichols, 134 Mo. 187; Clow v. Chapman, 28 S.W. 328; Mehrhoff v. Mehrhoff, 26 F. 13; Warren v. Warren, 50 N.W. 842.

It is only when the efforts to produce the unlawful result have been successful that an actionable wrong is committed. If there is no wrong under the laws of the state where the husband abandons the wife, there is no tort which can be enforced in any other jurisdiction. Debevoise v. Railroad Co., 98 N.Y. 377; Wooden v. Western N. Y. & R. R. Co., 26 N.E. 1050; Kohl v. Railroad Co., 10 So. 661; Carter v. Doode, 50 Ark. 155; Hyde, Admr., v. Wabash St. L. & P. Ry. Co., 16 N.W. 351, 47 Am. Rep. 820; Alexander v. Pennsylvania Co., 30 N.E. 69; DeHearn v. Railroad Co, 23 S.W. 381; Western Union Tel. Co. v. Phillips, 21 S.W. 638; Alabama, etc., R. R. Co. v. Carroll, 11 So. 803.

Where acts of negligence occur, or are set in motion in one state, and the resulting wrong occurs in another, the act is characterized by the law of the latter. Alabama, etc., R. R. Co. v. Carroll, 11 So. 803; Simpson v. Stole, 17 S.E. 984; State v. Morrow, 18 S.E. 853; State v. Bailey, 36 N.E. 233; State v. Hall, 19 S.E. 602.

If the act of enticing the plaintiff's husband was consummated in Wisconsin, there is no ground for action against the defendant, it being conceded that no such action lies in that state.

Section 5653, subdiv. 1, Rev. Codes 1899, is a mere continuation of the common law and relates only to secret communication between husband and wife. If the third person is present when a communication is made, or a letter containing it is exhibited to a third party or its contents stated to him, the case is not within the statute; and husband or wife can be compelled to testify to the same. State v. Center, 35 Vt. 379; Hagerman v. Wigent, 65 N.W. 756; Gannon v. People, 21 N.E. 525; McCague v. Miller, 36 Ohio St. 595; Higbee v. McMillan, 18 Kans. 133; Long v. Martin, 71 Mo.App. 569; Ward v. Oliver, 88 N.W. 631; Sessions v. Trevitt, 39 Ohio St. 259; Reynolds v. State, 46 N.E. 31; Mainerd v. Bender, 91 Am. Dec. 291; Fay v. Guiymon, 131 Mass. 31; Commonwealth v. Griffin, 110 Mass. 181; State v. Gray, 39 P. 1050; Mercer v. Patterson, 41 Ind. 440; Lyon v. Prouty, 28 N.E. 908.

It is the province of the court to determine all questions of fact, preliminary to the admission of any instrument or paper, or the testimony of any witness without reference to the jury. Bartlett v. Smith, 11 M. & W. 483; Gorton v. Hadsell, 9 Cush. 511; 1 Thompson on Trials, sections 318, 324; Jenkins v. Davis, 10 Q. B. 314; Chouteau v. Searcy, 8 Mo. 733; Cook v. Mix, 11 Conn. 432; Robinson v. Ferry, 11 Conn. 460; Witter v. Latham, 12 Conn. 392; Coleman v. Wolcott, 4 Day, 388; 1 Starkie on Evid. 354; Donelson v. Taylor, 8 Pick. 390; Wickliffe v. Lynch, 36 Ill. 209; State v. Michael, 19 L. R. A. 605; Commonwealth v. Reagon, 56 N.E. 577; Tabor v. Staniels, 2 Cal. 240; Mead v. Harris, 60 N.W. 284; Bowdle v. Railway Co., 61 N.W. 529.

This section, 5653, does not declare that a communication between husband and wife shall not be received in evidence; but that neither without the other's consent shall be examined as to such communication. State v. Hoyt, 47 Conn. 518; State v. Buffington, 20 Kans. 599; Lloyd v. Pennie, 50 F. 4; 1 Greenleaf on Ev., section 254a; 1 Whart. Ev., section 427.

A third party is not liable to a wife, under the laws of North Dakota, for enticing away her husband. Section 2718 provides: "The rights of personal relation forbid: 1. The abduction of a husband from his wife. 2. The abduction or enticement of a wife from her husband." There is an interference with the rights of the husband when the wife is either abducted or enticed from him; but there is no interference with the rights of the wife unless the husband is abducted, that is carried away by force, from her. Humphrey v. Pope, 54 P. 847, to the contrary is not a sound decision. Courts will not enforce a cause of action for a tort arising under a foreign law, because the cause of action is opposed to the policy of the jurisdiction where the suit is brought. Gardner v. Thomas, 14 Johns. 134; Johnson v. Dalton, 1 Cow. 543; Railroad Co. v. Jackson, 33 S.W. 857; Railroad Co. v. Richards, 68 Tex. 375; Railroad Co. v. McCormick, 71 Tex. 660; Ash v. Railroad Co., 72 Md. 144; Dale v. Atchison, T. & S. F. R. Co., 47 P. 521; Matheson v. Kansas City, Ft. S. & M. R. Co., 60 P. 747; Burdick v. Freeman, 46 Hun, 138; Maloney v. Dows, 8 Abb. Pr. 316; Whart. Conflict of Laws, section 478.

It was error to receive evidence of defendant's wealth and charge the jury to consider it in fixing the amount of damages. Hunt v. R. Co., 26 Iowa 363; Guengerech v. Smith, 34 Iowa 348; Southern Car Co. v. Adams, 32 So. pp. 503-507; Givens v. Berkley, 56 S.W. 158; Field on Damages, 127; Kniffen v. McConnell, 30 N.Y. 285.

Burke & Middaugh, Welch, Hayne & Hubachek, for respondent.

The trial judge has discretion to exclude some of the witnesses and allow others to remain. 1 Greenleaf on Ev., 432; Chicago. B. & Q. R. Co. v. Kellogg, 74 N.W. 403; Wilson v. State, 52 Ala. 299; People v. McCarty, 117 Cal. 65, 48 P. 984.

The court did not in its charge, single out the testimony of Mr. Davis, an attorney in the case, as alleged by counsel. It is true, it is of doubtful propriety for an attorney to be a witness without wholly withdrawing from the case, and he is open to criticism and suspicion unless he does. 1 Greenleaf on Ev., 386; Best on Ev., 184; Ross v. Demos, 45 Ill. 447; Blashfield on Instr., 225; Wiseman v. Cornish, 53 N.C. 218; Com. v. Pease, 137 Mass. 576. The instructions given were proper. Sackett on Instructions, 50.

If the instructions applied only to Mr. Davis, still they were correct. It is not error to instruct the jury that they shall consider the interest of the defendant in the result of the trial. Johnson v. State, 34 Neb. 257; People v. Petmecky, 99 N.Y. 415; People v. Calvin, 60 Mich. 113; State v. Singerland, 7 P. 280; People v. Knapp, 11 P. 793; Bressler v. People, 8 N.E. 62; Munich v. People, 9 P. 4; State v. Sterrett, 32 N.W. 387; State v. McGinnis, 76 Mo. 326; State v. Wisdom, 84 Mo. 177.

The court did not err in admitting exhibit 10--letter from plaintiff to her husband--and in instructing the jury in regard to it. There was a conflict of testimony as to whether plaintiff wrote exhibit 10; and if she did write it, whether she first read it to her husband before sealing it for delivery to him. If such question arises on the paper itself, it is the duty of the court to determine such question. But if it is necessary to resort to extrinsic evidence, in which there was a conflict, it was proper to submit the matter to the jury under a conditional or hypothetical charge. State v. Haynes, 7 N.D. 352; 75 N.W. 267; 1 Abbott's Trial Brief (Civ.) 459; Reynolds v. Richards, 14 Penn. St. 205; Stokes v. Johnson, 57 N.Y. 673; 11 Enc. Pl. & Pr. 86; 1 Greenleaf on Ev., section 49; Holliday v. Butt, 40 Ala. 178; Jordan v. State, 52 Ala. 188.

If the admission of such letter was error, it was committed at the instance of the defendant and she cannot avail herself of it. Thompson v. McKay, 41 Cal. 221; Bigelow on Estoppel, 602; Ry. Co. v. Marcott, 41 Mich. 433; Smith v. Rathburn, 75 N.Y. 122.

The declarations of husband and wife are subject to the same rules of exclusion which govern their testimony as witnesses. Nat. Ger. Am. Bk. v. Lawrence, 79 N.W. 1016; 1 Greenleaf on Ev., section 341; 1 Phil. Ev. 80; Hall v. Hill, 2 Strange, 1094; Ross v. Winners, 6 N.J.L. 366.

Some states hold that the privilege is absolute and cannot be waived by either spouse. Campbell v. Chace, 12 R. I. 333; O'Conner v. Marjoribanks, 44 M. & G. 435; Hopkins v. Grimshaw, 165 U.S. 342; 17 S.Ct. 401; Hubbell v. Grant, 39 Mich. 641.

There are some cases holding that the concurrence of both spouses is required for a waiver. Bradford v. Vinton, 26 N.W. 401; People v. Wood, 27 N.E. 362; Newstrom v. St. Paul & D. R. Co., 63 N.W. 253; Warner v. Press Pub. Co., 30 N.E. 393; Hertrick v. Hertrick, 87 N.W. 689.

An action for alienating a husband's affections can be maintained in this state under sections 2713, 2714.

Such action is maintainable at common law. Bennett v. Bennett, 116 N.Y. 583, 6 L. R. A. 555; Lych v. Knight, 9 H. L. Cas. 577; Foote v. Card, 58 Conn. 1, 6 L. R. A. 829; Nichols v. Nichols, 134 Mo. 187; Wolf v. Frank, 92 Md. 138; Haynes v. Nowlin, 129 Ind. 581, 29 N.E. 389.

It is claimed the word "abduction" used in the statute does not mean a leading estray, and this action cannot be maintained, and Duffies v. Duffies, 45 N.W. 522, is cited in support.

This case is criticised in Warren v. Warren, 50 N.W. 842. Against the principle are the following: Dietzman v Mullin, 50 L. R. A. 808; Bennett v. Bennett, 116 N.Y. 583, 6 L. R. A. 555; Humphry v. Pope, 54 P. 847; Haynes v. Nowlin, 129 Ind. 581; Reg. v. Manktelow, 6...