Rehling v. Brainard

• Decision Date: 12 November 1914
• Docket Number: 2116.
• Citation: 144 P. 167,38 Nev. 16
• Parties: REHLING v. BRAINARD.
• Court: Nevada Supreme Court

144 P. 167

38 Nev. 16

REHLING v. BRAINARD.

No. 2116.

Supreme Court of Nevada

November 12, 1914

Appeal from Judicial District Court, Washoe County; John S. Orr Judge.

Action by Joseph L. Rehling against E. A. Brainard. From judgment for plaintiff, defendant appeals. Affirmed.

Massey & Springmeyer, of Reno, for appellant.

Stoddard Moore & Woodburn, of Reno, for respondent.

McCARRAN J.

This is an action in damage for criminal conversation between appellant and the wife of respondent. Damage was prayed for in the sum of $10,000. The case was tried in the lower court without a jury. Judgment was rendered in favor of plaintiff in the sum of $2,000. From the judgment and from the order denying a new trial the defendant appeals.

The defense interposed by the pleadings denies the alleged wrongful act, and the damage, and by way of affirmative defense appellant alleged that respondent and his wife, prior to the 19th day of June, 1911, conspired to manufacture evidence against the appellant, and conspired to wrongfully accuse appellant of the acts alleged in the complaint for the purpose of extorting money from him.

There are a number of assignments of error asserted by appellant in the case. We will consider only that assignment most seriously urged, and the one only which, in our judgment demands serious consideration.

The respondent on redirect examination was interrogated by his attorneys relative to the relationship existing between himself and wife subsequent to the 19th day of October, 1911 the date on which he testified to having seen his wife in a compromising position with appellant. His testimony disclosed that some time after the 19th day of October he left the state and went to California, and, having identified certain letters received by him from his wife while he was in the state of California, the same were admitted in evidence over the objection of appellant. The admission of these letters in evidence is the principal error relied upon by appellant for reversal in this case. The evidence tended to establish that these letters were written by Annie Rehling, wife of respondent, after the 19th of October, and were received by respondent, according to his testimony, while he was in the state of California. The appellant, Brainard, had no knowledge of the sending and receiving of the letters, nor of their contents. The letter of December 20th contains a complete confession on the part of respondent's wife, and a full statement disclosing the illicit relations existing between Brainard and herself.

The letter of December 10th is, in substance, a request for respondent to return to Reno, and among other things contains these words:

"Well, all at once my eyes are open. Now I am ready to talk and if you think of me as you said you did then, and seemed to when you left, I am your friend in every sense of the word as you said you were mine, and want you to come here now and hear what I have to say."

The letters contained other statements indicating that the respondent had left the home, and that there was at least a temporary separation.

It is the contention of appellant that these letters purporting to have been written by the wife of respondent without the knowledge or assent of appellant, are objectionable under the rule excluding hearsay testimony, and also under the rule excluding self-serving declarations. There is nothing in the record, in our judgment, that would relieve these letters of their objectionable features in so far as their contained admission and declarations of acts of adultery are concerned. Each of the letters were subject to exclusion under all the rules invoked if they had been admitted for any other purposes than that expressly stated by the court when admitting them.

In reviewing this particular phase of the case, however, we must take into consideration the circumstances under which the letters were admitted, the purpose for which they were admitted, and the force and effect apparently given to them by the trial judge on arriving at his decision. A review of this phase of the case necessarily demands a consideration of the entire field covered by the evidence produced at the trial.

The wife of the respondent, the party from whom these letters purported to have emanated, was called as a witness by respondent, and her testimony given at the trial disclosed a chapter of her life which was replete with debauchery in which the appellant, according to her testimony, was the star actor. Her story told upon the stand, both in direct and through the course of the most searching cross examination, disclosed a series of acts of adultery committed with the appellant, not only in her own home, but in various lodging houses in the city of Reno prior to the 19th of October. She testified in detail as to the occurrences on the day of the 19th of October, the date on which it is alleged respondent discovered appellant in a compromising position with her, and in her testimony she admits the act of adultery on that date. Her testimony not only covers the ground covered by the inadmissible portions of the letters, but without referring to the letters goes much further, and much more in detail. In her testimony she corroborates the statement made by respondent as to the acts and utterances of the respective parties, to wit, herself, the appellant, and the respondent in the presence of each other on the 19th day of October.

As we have already stated, it requires no citation of authorities and no critical analysis to further the conclusion that the letters in question were inadmissible to prove adulterous acts. Their incompetency was a matter manifest and apparent on their very face. With reference to the admission of the letters the record discloses the purpose for which they were admitted, and the attitude of the court in admitting them. The court in admitting them in evidence expressly stated the purpose for which the letters were admitted, i. e., "contradicting any inference that might be drawn that they were living together as husband and wife, cohabiting together," subsequent to October 19th.

It has been held that, even in cases where a trial was conducted before a jury, the admission of incompetent evidence contained in an instrument, part of the contents of which was competent, would not constitute reversible error where the court gave instruction to the jury directing them to disregard the incompetent portion, or where the court specifically instructed the jury as to the purpose for which the instrument or its contents should be considered by them. Billings v. Albright, 66 A.D. 239, 73 N.Y.S. 22; Ball v. Marquis, 122 Iowa, 665, 98 N.W. 496.

Our reference to this rule applicable to the admission of evidence of this character in the trial of cases before a jury is made without conferring upon it either our approval or disapproval. The established and recognized rules applicable to the admissibility of evidence should, in our judgment, be closely and carefully adhered to, with a view that nothing may inject itself into the record excepting that which is properly admissible under the applicable rules. Strict adherence to these rules forms the surest avenue by which litigation may be speedily determined and by which litigants may be saved interminable annoyance and expense attendant upon reversals by courts of last resorts, and hardshipful retrials.

In a case such as this where the trial is conducted before a court sitting without a jury, it may, in our judgment, be properly presumed, unless the contrary appears, that the court in arriving at its conclusion considered only such evidence as was legally admissible. Gernert v. Griffin, 28 Okl. 733, 116 P. 439; Lee v. Railway Co., 67 Kan. 402, 73 P. 110, 63 L. R. A. 271.

As we have already stated, the incompetent evidence admitted by way of the letters in question was not the only evidence establishing the acts of adultery. Other and competent evidence...