Luick v. Arends
| Citation | 132 N.W. 353,21 N.D. 614 |
| Parties | LUICK v. ARENDS. |
| Decision Date | 12 September 1911 |
| Court | United States State Supreme Court of North Dakota |
LUICK
v.
ARENDS.
Supreme Court of North Dakota.
June 8, 1911.
Rehearing Denied Sept. 12, 1911.
In an action for alienation of the affections of the wife and for damages resulting, a decree of divorce obtained by the wife from the plaintiff after litigation on the merits, granted because of the husband's adjudged cruel and inhuman treatment of the wife during the period of time in issue under the pleadings in the alienation of affections case, the divorce action and proceedings, including the decree of divorce, is not res adjudicata on the questions involved in the alienation of affections case against the third party, and plaintiff is not barred or estopped thereby from recovery against the third party for alienating the affections of the wife.
In such an action the decree of divorce is a judgment in rem to the extent only of judicially establishing the prior existence of the marriage, its dissolution, and the status of the parties thereafter under the decree. Such judgment is in all other respects a judgment in personam. The legal grounds upon which the decree was granted and the pleadings in the divorce action are not to be construed as a part of the judgment in rem. Therefore the grounds upon which such decree is granted, as well as the pleadings in the divorce action, are not admissible as part of a judgment in rem in the trial of an issue of alienation of the wife's affections brought by the husband against a stranger to the divorce proceedings. The divorce decree alone being a judgment in rem to the extent only as above defined is admissible to establish the prior marriage, prove its dissolution, and fix the status of the parties in relation to the admission of testimony and issues to be determined in the alienation of affections case on trial.
In this class of actions, the existence or nonexistence of the wife's affection being in issue, her declarations to third persons not in the presence of her husband as to her love of or hatred for him, when made at a time when there exists no motive to deceive and before the commencement of the alienating influences complained of, are admissible; but any statements of facts or reasons to justify or explain her declarations of love or hatred are inadmissible.
The statute of a foreign state declaring a forfeiture of a cause of action for alienation of a wife's affection, when the husband has been by such wife because of his fault divorced, is given no extraterritorial force, and such statute does not operate to forfeit a right of action existing and sued upon here prior to the granting of the divorce in the state where such statute exists.
Privileged communications between husband and wife under section 7253, R. C. 1905, defined and applied in this case where the former wife was offered as a witness in defendant's behalf against her former husband to prove statements made by the husband and wife and events occurring during the period of her marriage relation.
A parent, brother, or sister has the right to counsel a married son, daughter, brother, or sister in good faith within reasonable limits, when not maliciously done and when given for the apparent best interests of the party advised, without the relative so advising being liable to an action for injury caused one party to the marriage resulting from the advice so given; yet this privilege by reason of relationship amounts to but the presumption that the party so advising, because of natural love and affection of near blood relatives toward one another, would act only for the best interests and with proper motives toward the person advised. Whether the privilege thus accorded near blood relatives in such matters extends to a brother-in-law of the wife advised in this case is a question of fact for the jury to determine under all the circumstances under proper instructions from the court.
A stranger in blood inducing a wife to leave her husband, or taking her away with or without her consent and encouraging her to remain away from him, does so at his peril, and the burden is on him to show good cause, good faith, and justification for such acts; but the question as to whether such person was justified in so doing is a question for the jury.
The permitting of redirect examination immediately following cross-examination of the defendant under the statute in plaintiff's main case is discretionary with the trial court, but the better practice is not to allow such redirect examination until defendant's main case.
Evidence examined, and held insufficient to sustain the verdict.
The word “privilege” as applied to the exclusion of testimony of a husband or wife, under Rev. Codes 1905, § 7253, providing that a husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, without the consent of the other, be examined
[132 N.W. 354]
as to any communications made by one to the other during the marriage, implies an option or a right of waiver.
Appeal from District Court, Richland County; Allen, Judge.
Action by Frank E. Luick against John A. Arends. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
McCumber & Forbes and A. D. Pugh, for appellant. Purcell & Divet, for respondent.
GOSS, J.
This action is for damages for defendant's alienation of the affections of plaintiff's wife. The complaint charges defendant with alienating the wife's affections, and that this resulted in the separation of plaintiff's family. Plaintiff recovered a judgment ordered on a verdict for $3,300. More than two weeks was occupied in the trial of the case, and the record is very voluminous, containing nearly 400 assignments of error. The following statement with the facts appearing in the opinion will sufficiently explain the law governing the case:
Plaintiff and wife were married in 1887, have three children living, whose ages range from 7 to 15 years. They lived in Iowa until 1900, when plaintiff came to Richland county, his wife and family joining him there in the spring of 1901. There they remained until their separation on February 27, 1904, when the wife, Mary Luick, after a division of the property between husband and wife then had, removed to Iowa, taking the children with her, plaintiff remaining. The wives of plaintiff and defendant were half sisters. Defendant is and always has been a resident of Iowa. Mary Luick's mother resides in Iowa, and it was to her place that the wife went on her leaving the home of plaintiff. Plaintiff and wife had little domestic trouble until they came to North Dakota, although there is some testimony of isolated instances of alleged mistreatment of the wife by the plaintiff during their residence in Iowa. On the trial the wife testifies to many exhibitions of temper by her husband toward her from shortly after her marriage, and charges him with frequently applying toward her vulgar and obscene epithets, and that this, with their frequent disagreements, caused her loss of affection for him prior to her removal to North Dakota; that thereafter she frequently wrote to her relatives in Iowa, among them her brother, mother, and defendant's wife, complaining to them of plaintiff's treatment of her, and stated her intention of leaving plaintiff. Defendant and plaintiff had always been friends and dealt in a business way with each other, in the course of which transactions defendant purchased lands in plaintiff's neighborhood in North Dakota. Defendant had been at plaintiff's home here on several occasions. On the 22d of February, 1904, plaintiff's wife's brother, accompanied by the defendant, appeared at plaintiff's residence, and shortly afterward announced that they had come to settle up matters between plaintiff and his wife, and assist the wife and children back to Iowa. As to what occurred from this point on the testimony is very conflicting, plaintiff testifying to facts which if true show an interference by the defendant in plaintiff's family affairs, ending with the separation of plaintiff and wife, and in the preparation, execution, and delivery of articles of agreement effecting the division of the property and custody of the children, the wife securing deeds to the lands and removing with the children to Iowa, accompanied by her brother and the defendant. After the expiration of one year and three days, or practically as soon as the wife had acquired the one year's residence required by the statutes of Iowa before commencing an action for divorce, she instituted such an action against the plaintiff, charging him with cruel and inhuman treatment endangering her life during a period covering practically their entire married life, and asking a divorce, alimony, and custody of the children. The plaintiff appeared in the divorce proceedings and charged his wife with desertion, based on her leaving his home in North Dakota February 27, 1904, and litigated on the merits the matters so put in issue in the divorce case in Iowa. The trial court granted the wife the custody of the children, alimony, and a divorce from the plaintiff on the grounds of his cruelty alleged, finding against the plaintiff on his cross-bill charging her with desertion. Plaintiff appealed to the Supreme Court of Iowa, which appeal was pending at the time of the trial of this case against defendant Arends in district court, but has subsequently been decided, as reported in 132 Iowa, 302, 109 N. W. 783, in favor of the wife by an affirmance by the Iowa Supreme Court of the trial court's decision. This case (Luick v. Arends) was commenced in January, 1905, prior to the commencement of said divorce proceedings, and before the year's residence had been acquired by plaintiff's wife in Iowa. The trial of this action was had, commencing in February, 1906. The defendant pleaded the foregoing divorce proceedings, excepting the affirmance by the Supreme Court of Iowa of...
To continue reading
Request your trial