Rice v. Rice

• Decision Date: 19 March 1895
• Citation: 62 N.W. 833,104 Mich. 371
• Court: Michigan Supreme Court
• Parties: RICE v. RICE.

62 N.W. 833

104 Mich. 371

RICE v. RICE.

Supreme Court of Michigan

March 19, 1895

Error to circuit court, Kalamazoo county; George M. Buck, Judge.

Action by Julia Rice against Parley H. Rice. From a judgment for plaintiff, defendant brings error. Reversed.

A witness cannot be impeached by proving a statement different from the sworn to, unless he has been examined as to his having made such statement.

Plaintiff recovered verdict and judgment against the defendant, her father-in-law, for the alienation of her husband's affections. Plaintiff and her family were Catholics; her husband his family were Protestants. Her husband was defendant's only son. Both families were farmers, living about two miles apart. Plaintiff and her husband were of the same age, and 21 years old when married. It is evident that neither family looked with much favor upon the marriage. During the courtship the question of her religion had been discussed between them. He refused to be married in the Catholic church or by a Catholic priest. She yielded her wishes in this respect, and they were married by a Protestant clergyman. None of the members of either family attended the wedding. Immediately after their marriage they went to the defendant's house, where they lived three months. They then moved to a house on his father's farm, where they lived together about six months, when he abandoned her, and returned to his father's home. Meanwhile he worked on his father's farm. She remained away from her church for a while, but finally returned to it. Whether her Protestant marriage resulted, ipso facto, in dissolving her church relations, or whether she voluntarily gave up her membership, does not clearly appear, nor is it material to inquire. On Sunday, the day her husband abandoned her, she returned, and resumed her relations with the church. As she expressed it, she was "taken back into the church." On her return from church, between 10 and 11 o'clock in the forenoon, she found the defendant and his wife, her husband, and the defendant's hired man with a team removing the furniture from the house, and was then informed by husband in the presence of the defendant, that she had gone back to the church, and he would no longer live with her. The household goods were removed, and she went back to her former home. The testimony of the plaintiff herself and her witnesses tended to support her case. The testimony of the defendant and his witnesses was a plain and clear denial of that on the part of the plaintiff, and, if true, showed that he had done no more than to give his son that advice which he was justified in giving. If the jury believed her testimony, she was entitled to a verdict; if they believed his testimony she was not. The errors alleged arise upon the competency of some of the jurors, the admission and rejection of testimony and the charge of the court.

Osborn, Mills, & Master, for appellant.

James H. Kinnane and Howard & Roos, for appellee.

GRANT J. (after stating the facts).

1. A juror named Jesse Hitchcock, on his examination, testified that he lived in the neighborhood; was acquainted with the defendant; had talked with many different persons about the affair; had not discussed the merits of the case; the persons with whom he talked expressed an opinion to him; he had also expressed an opinion based upon what he had heard; had formed a sort of an opinion, if what he had heard was true; that it would take some evidence to remove that opinion; but that it was not so fixed that he would not be governed by the evidence. On cross-examination he testified that he knew both parties, and had known them intimately for a long time; did not know as he had formed any opinion upon the merits; might have formed some impression. "Q. Do you think you could try the case as fairly and impartially between the parties as you could if you hadn't heard of it, and formed those impressions? A. Possibly not. Q. Do you think you could not? A. I presume I could not." On redirect examination the witness again testified that he had no such fixed opinion that he would not be governed by the evidence that was given in the case. The juror was challenged for cause, and the challenge overruled. Even in criminal cases, the formation or expression of opinion not based upon actual knowledge, or upon conversations with those cognizant of the facts, does not disqualify a juror, provided the juror shall declare on oath that he believes he can render fair and impartial verdict. Holt v. People, 13 Mich. 224; Ulrich v. People, 39 Mich. 246. In a civil case, the disqualification of a juror must clearly appear in order to justify a reversal by an appellate court. It does not appear that this juror had conversed with either of the parties or their friends, or with any one having knowledge of the facts. The sources of a juror's information are important in determining his qualifications. People v. Barker, 60 Mich. 287, 27 N.W. 539. We do not think this juror was legally disqualified.

2. The defendant saw a picture of the Virgin Mary hanging upon the wall in the plaintiff's house, which had been hung there by an aunt of the plaintiff's, who was then present. He asked plaintiff if she put it there, to which she replied in the negative. He then asked the aunt, who said she put it there, and the conversation was permitted to be given about the picture. The court held it incompetent. But, on the statement of her counsel that he would show something more in that connection, it was allowed to stand. Witness then testified that defendant said, in the presence of plaintiff and her aunt, that "he would rather see his son dead than living with a Catholic." This testimony was competent, but the rest of the conversation was incompetent. His dislike and condemnation of a picture had no earthly bearing upon the issue. The language imputed to him by the witness was such as would naturally prejudice a jury.

3. On cross-examination of the plaintiff, this question was asked: "Did you know that your church did not recognize a marriage as binding between a Protestant and Catholic, by a Protestant clergyman?" This was ruled out, under objection, and plaintiff's counsel remarked: "There is no law in this state that permits a father-in-law to take away a husband." Another witness for the plaintiff was asked, on cross-examination: "You knew that in that church that [the marriage] meant no salvation for her [the plaintiff], and you did not object to that." This also was ruled out. The object of the testimony appears to be that it tended to rebut the testimony of the witnesses that her family did not object to the marriage. We think the ruling of the court that this testimony was too remote for that purpose was correct. The statement of the plaintiff's counsel was ill advised, but it is not of sufficient importance to justify a reversal of the case.

4. The defendant's wife, a witness in his behalf, testified that she objected to the marriage, and was asked to state what her objections were. The question was properly excluded. Her objections could have no possible bearing upon the issue, viz. the alienation of the husband's affections by the defendant.

5. On cross-examination of defendant's wife counsel for plaintiff asked: "So that the extent of her sinning at that time against the Rice household was by attending church again?" The answer was allowed under objection and exception. This was followed by the question: "Didn't you think a person in this country ought to be allowed, under reasonable restrictions, to embrace whatever religion seemed to them proper? Answer. Yes, sir." After it was answered, counsel for defendant objected to it as immaterial and irrelevant, and the court held the question to be improper. Both questions should have been excluded.

6. In the winter after the separation, which occurred in October the defendant's wife had a conversation with a Mrs. Owens, in Kalamazoo. On cross-examination the following question was asked her: "Do you recollect having a conversation with her in which you said that you were waiting for Lem to come and take you home; that you supposed that Julia had got a hold of him somewhere, and was trying to coax him to live with her again, but that was all the good it would do her-that Lem should never live with her any more?" This was answered under objection, and she denied saying that her son should never live with her again. Mrs. Owens was called in rebuttal, and testified to this conversation. She did not, however, testify that Mrs. Rice said that her son should never live with his wife again, but...