Perry v. Lovejoy
| Decision Date | 05 January 1883 |
| Citation | 14 N.W. 485,49 Mich. 529 |
| Court | Michigan Supreme Court |
| Parties | PERRY v. LOVEJOY. |
In an action for alienating the affections of a wife and enticing her away from her husband, letters written by the wife before she left him, to the husband and to her parents, are admissible as tending to show the state of her feelings towards her husband.
The fact that a wife is present in court and could testify herself will not exclude such letters, for unless her husband consents to her testifying she could not become a witness and no consent was given in this case.
Evidence that defendant had illicit intercourse with the wife is not admissible, no such allegation being made in the declaration in an action for enticing a wife away and alienating her affections from her husband.
In this action evidence of cohabitation and repute, and admissions by defendant that plaintiff and his alleged wife were married will be sufficient to prove the marriage.
Certain alleged declarations of the wife excluded as too remote and vague to be admissible in evidence.
Error to Ingham.
John C. Shields, for plaintiff.
Q.A Smith and Huntington & Henderson, for defendant and appellant.
This is a special action on the case in which the plaintiff Perry alleges an unwarrantable and injurious interference by Lovejoy with his social and domestic rights and enjoyments. The substance of the charge is that Lovejoy tortiously enticed and procured Perry's wife to refuse to live with him and to desert him, whereby he lost her affection and her comfort, fellowship, society and assistance. A recovery was had and defendant alleges exceptions. The plaintiff's marriage occurred in 1870 and at the date of the trial in March last they had two children, a boy of eleven and a girl eight years of age.
The plaintiff adduced evidence that from the time of the marriage down to June 25, 1880, his wife continued to live with him that in the fall of 1877 he moved his family into a house on defendant's farm standing 20 or 30 feet from the house then and still occupied by defendant; that he stayed there with his family until about the twenty-first of March, 1880, at which time he went to Kansas to find a place to remove to and left his wife and children in the house; that while he was in Kansas he received letters from his wife, two of which were produced, the others having been destroyed; that those produced though of different dates were received at the same time and in the same envelope; that one indicated affection for him by his wife while the others did not and which induced him to return at once and he did so about June 15, 1880; that he thence lived with his wife and family for about a week, when, and during his absence and without his knowledge she left the house and repaired to her father's and there stayed three or four weeks and then proceeded to live and work at defendant's for a period of three or four months and has since refused to live or cohabit with her husband; that in December, 1880, she commenced suit in chancery against him for a divorce for extreme cruelty; that he caused his appearance to be entered, but no evidence has been taken and no hearing had.
At this stage of the trial the plaintiff offered the letter containing indications of the wife's affections and it was objected to on two grounds: (1) Because the judgment in White v. Ross, 47 Mich. 172, [S.C. 10 N.W. 188,] was opposed to its admission. (2) Because the writer, the plaintiff's wife, was then actually present and might be called at his election to make her statement under the sanction of an oath. The court allowed the letter to come in.
In view of the antecedent showing we think this determination was in accordance with the law of evidence.
By the common law the plaintiff's wife was absolutely incompetent. The rule has been so far modified by legislation as to make her competent in case of his consent, and leaving him perfectly free to give or withhold his consent. No fetter is imposed on the discretion so given. He refused and the consequence was that she was just as incompetent as she would have been in case the common law had remained unaltered. In point of principle therefore the circumstance that she was actually in court and could be made a lawful witness at the plaintiff's own instance was void of influence on the admissibility of the letter.
We have seen what was the nature of the evidence which preceded the offer of the letter and the conclusion is unavoidable that there was enough in it to allow the jury to inquire whether the defendant had committed an actionable interference in the plaintiff's family relations. The question was not ruled by White v. Ross, supra. The gist of the action is the plaintiff's loss of his wife's society, services, and comfort by means of the tortious conduct of the defendant, ( Winsmore v. Greenbank, Willes, 577; Bennett v. Smith, 21 Barb. 439; Barnes v. Allen, 1 Keyes, 390,) and among the questions which pertain to the issue are these: Was the loss attributable to the misconduct of the plaintiff, or was it owing to the voluntary doings of the wife, or was it effectuated or induced by the illegal behavior of the defendant? If it occurred, and the defendant was not guilty of any tortious conduct to bring it about, then the action could not be maintained, and as bearing on the question it was pertinent to inquire into the state of the wife's mind and affection towards the plaintiff and on that subject her letter was legitimate evidence. Thompson v. Trevannion, Skin. 402; Averson v. Lord Kinnaird, 6 East, 188; Walton v. Green, 1 Car. & P. 621; Houleston v. Smyth, 2 Car. & P. 22; Jones v. Thompson, 6 Car. & P. 415; Wilton v. Webster, 7 Car. & P. 198; Hoare v. Allen, 3 Esp. 276; Trelawney v. Coleman, 2 Stark. 191; S.C. 1 Barn. & Ald. 90; Willis v. Bernard, 8 Bing. 376; Park v. Hopkins, 2 Bail.Law, 408; Bennett v. Smith, supra; Edwards v. Crock, 4 Esp. 39; Preston v. Bowers, 13 Ohio St. 1; Snorer v. Blair, 25 N.J.Law, 94.
The next point is on a ruling that the plaintiff might show that the defendant had been guilty of illicit intercourse with Mrs. Perry. The defendant objected to going into evidence on that topic because the declaration alleged no such wrong and any attempt to prove it would be a departure from the issue.
We think the objection was well taken.
As stated formerly the plaintiff alleged as the cause of his...
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