McGinnis v. McGlothlan
| Decision Date | 22 November 1915 |
| Citation | 180 S.W. 405,192 Mo.App. 141 |
| Parties | ALFRED D. McGINNIS, Respondent, v. CHARLES W. McGLOTHLAN, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Gentry Circuit Court.--Hon. D. D. Reeves, Special Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Ed. E Aleshire and R. P. Duncan for appellant.
Wood & McCaslin for respondent.
--Plaintiff's action was instituted against defendant for damages for alienating the affections of his wife. On trial in the circuit court before a special judge he recovered judgment.
On the question presented under defendant's demurrer to the evidence we readily rule that the court was right in refusing it, since there was abundant evidence to justify the jury.
But there were objections to evidence admitted over defendant's protest that require serious consideration. Plaintiff was permitted to testify that his wife, when they were together alone, had, in effect, confessed to him, in answer to his questioning her, that her relations with defendant were improper and that she was in love with him. In many of the States the statute, in terms, prevents both the husband and wife from testifying for or against each other in regard to communications in private between them concerning their marital relations. [Leucht v. Leucht, 129 Ky 700, 705, 708, 112 S.W. 845; Willey v. Howell, 159 Ky. 805, 169 S.W. 519; Sanborn v. Gale, 162 Mass. 412, 38 N.E. 710.] Our statute (Sec. 6359, R. S. 1909) confines itself to a restriction on the wife only. It reads that it does not permit "any married woman, while the relation exists, or subsequently, to testify to any admission or conversations of her husband, whether made to herself or third parties." The husband's competency to testify as to communications from the wife is left as at common law, as controlled by section 6354.
But it seems to be ruled in some jurisdictions that while evidence of what the husband or wife said to the other relating to matters connected with their domestic concerns may not be admitted as proof of the substantive fact of guilt of the accused party in an action for alienation, yet communications between them, though in privacy, may be received for the purpose of showing the state of feeling or affection for the plaintiff, even though this involves and includes acts, conduct and declarations of the defendant. [Hardwick v. Hardwick, 130 Iowa 230, 106 N.W. 639; Miller v. Miller, 154 Iowa 344, 348, 134 N.W. 1058.]
The point involves two considerations; one as to the right to show private communications between husband and wife relating to the defendant; and the other the right to show such communications when they consist of declarations of the defendant made in his absence. The better rule seems to be that in order to show the state of mind concerning the affections said to have been alienated, private communications between husband and wife may be shown, provided they do not include statements of what the defendant did or said. The latter, if allowed, could be artfully used to manufacture a case against an innocent person by mere hearsay.
We think this view is sustained by reference to the case of Fuller v. Robinson, 230 Mo. 22, 130 S.W. 343. Referring to a conversation between the plaintiff Fuller and his wife, in the presence of her mother, to show the state of her affections and her motive in making a trip to Toledo Judge GANTT said: (p. 39) that "It will be noted that this conversation contained no reference to any word, act or conduct of the defendant." And at another place (p. 41) the Judge, approving the ruling in another case, says the evidence "was plainly not admissible because it was the declaration of a husband as to the acts and conduct of the defendant," etc. But it may be said as in Preston v. Bowers, 13 Ohio St. 1, 12, that the declarations of a wife in regard to the state of her affections towards her husband may be so blended with her statement of the acts of her seducer as to render their separation impracticable. The court did not think so. Saying "It seems to us there would have been no...
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