Sexton v. Sexton

• Decision Date: 16 December 1905
• Citation: 129 Iowa 487,105 N.W. 314
• Parties: SEXTON v. SEXTON.
• Court: Iowa Supreme Court

129 Iowa 487

105 N.W. 314

SEXTON

v.SEXTON.

Supreme Court of Iowa.

Dec. 16, 1905.

Appeal from District Court, Ida County; Z. A. Church, Judge.

Action at law by plaintiff to recover damages from defendant, her father-in-law, for alienating the affections of her husband. There was a verdict and judgment in favor of plaintiff, and defendant appeals. Affirmed.F. E. Gill and W. E. Johnston, for appellant.

P. W. Harding, for appellee.

BISHOP, J.

Plaintiff and James Sexton, Jr., were married in November, 1899, and for some time thereafter continued to live together.One child was born to them, at the time of the commencement of this action three years old. Before the action said James, Jr., had abandoned plaintiff and their child, and was making his home with the defendant, his father. During the trial plaintiff was called as a witness on her own behalf, and to prove that her husband regarded her with affection at and for some time after the marriage, and, further, to prove the subsequent loss or withdrawal of such affection by him, she was allowed to testify to acts, statements, and declarations on his part, addressed to her. To the same end, several letters, written to plaintiff by her husband while absent from home, and produced by her in court, were also allowed to be introduced and read to the jury. To all such evidence the defendant made timely objection, basing the same upon the statute (Code, § 4607), which reads as follows: “Neither husband nor wife can be examined in any case as to any communication made by the one to the other while married,” etc. The objections were overruled, and upon such rulings is predicated the only contention for error as presented in argument by counsel for appellant.

This court has not been called upon before to give construction to the statute in the precise relation exhibited by the instant record. But, as we shall see presently, cases have arisen presenting fact situations more or less similar, and in the determination of which the rule of the statute, and the force and effect to be given thereto, was the subject of consideration and of pronouncement. The literal reading of the statute would seem to be quite conclusive against the right to call either the husband or wife to speak from the witness stand respecting communications had between them, no matter what the character thereof or the occasion or purpose. But we are not always restricted to the precise words employed, in getting at the meaning of a statute. And it is the real purpose and intent of the Legislature, as meant to be expressed, to which we are to give force of operation. Noble v. State, 1 G. Greene, 325;Dilger v. Palmer, 60 Iowa, 117, 10 N. W. 763, 14 N. W. 134. That which is clearly not within the intention of a statute, although within the letter thereof, is held not to be within the statute. Crabell v. Wapello C. Co., 68 Iowa, 751, 28 N. W. 56. And a construction is not to be put upon a statute which would manifestly effectuate injustice, if it is susceptible of a different construction. Small v. Railway, 50 Iowa, 338. The privilege of communications between husband and wife, was secured at common law. The rule was not designed to suppress truth, but had its origin in the fact, made clear by experience, that greater mischiefs resulted from the admission of such evidence than were likely to arise from its exclusion. In common, therefore, with other privileges, analogous in character, it was grounded on public policy. In stating the reasons for the privilege Mr. Greenleaf says: “The happiness of the married state requires that there should be the most unlimited confidence between husband and wife, and this confidence the law secures by providing that it shall be kept forever inviolable; that nothing shall be extracted from the bosom of the wife which was there confided by her husband.” 1 Greenleaf on Evidence, § 254. That the common-law courts were not all agreed as to the measure or extent of the privilege must be confessed, and that such lack of uniformity in decision has continued, notwithstanding the principle involved has generally found its way into the statute law of the land, is equally true. Without doubt, however, the latter fact is due in some measure to the difference in phrasing to be found in the enactments as adopted in the various states; some providing for the exclusion of so-called confidential communications only, and others, as in this state, providing in terms that any communication is within the privilege. That the expression “any communication” is in form of words of broader import than the expression “confidential communication,” is clear enough, although some courts have treated the expressions as synonymous for the purposes of practical application. Other courts, however, have placed a more strict construction upon the word “confidential,” and have refused the privilege unless the communication called for either bore the impress of secrecy, or the fact appeared that it had been expressly made confidential; this, of course, in jurisdictions where the rule in form excludes only confidential communications. Any such narrow construction is avoided by use of the expression “any communication,” and in the jurisdictions where adopted it is not unreasonable to suppose such was within the intention of the Legislature.

We come, then, to the question, what is meant by the expression “any communication” as used in the statute? As we have seen, the privilege is bottomed upon considerations of public policy. Accordingly it would seem that, whatever the form of expression adopted, no more is required than that the confidences inherent in the marital relation, or incident thereto, should be fully protected. Says Mr. Wigmore, in his recent work on Evidence (section 2336): “The essence of the privilege is to protect confidences only.” And this must be true, because there can be no reason arising out of public policy, or otherwise, requiring that every word spoken between husband and wife shall be privileged, irrespective of the presence in which spoken or the subject or occasion thereof. And, within our observation, no court has ever gone so far as to so hold. The spirit of the rule as enforced at common law, and, within our understanding, the meaning to be gathered from the statute, is that the privilege shall be construed to embrace only the knowledge which the husband or wife obtains from the other, which, but for the marriage relation and the confidence growing out of it, would not have been communicated, or which is of such nature or character as that, to repeat the same, would tend to unduly embarrass or disturb the parties in their marital relations. It is the marital communication, then, that is sought to be protected, and this is so because there is no purpose of public policy to interfere, except to guard and foster the marital relation. Any other construction would be intolerable, and would lead to most absurd results. Thus it cannot be that words spoken by husband to wife, or vice versa, in the presence and hearing of one or more third persons, and hence in the very nature of things not to be construed as in any marital sense private or confidential, must be held within the protection of the privilege, although clearly within the letter of the statute. Our attention has been called to no case going to such length. On the other hand, the books are full of cases which hold that such communications are not within the reason of the privilege. And this is true of cases arising under statutes, in the phrasing of which the privilege is made to extend to all or any communications, equally with cases arising under statutes which in terms exclude only confidential communications. These are among other cases that might be cited: Spivey v. Platon, 29 Ark. 603;Floyd v. Miller, 61 Ind. 224;Fay v. Guynon, 131 Mass. 31;Long v. Martin, 152 Mo. 668, 54 S. W. 473;Sessions v. Trevitt, 39 Ohio St. 259.

So, too, it cannot be that the rule of privilege must be hold to extend so far as to exclude all communications between husband and wife having reference to business relations existing either as between them directly, or as between them--one or both--and others. Certainly as to business relations existing between husband and wife directly, there can be no adverse consideration of public policy. Quite to the contrary, public policy, as reflected by statute and by our decisions, permits of such relations to the fullest extent. And it would be shocking to say that a contract thus made, or rights or liabilities thus accruing, could not be enforced because, forsooth, a communication between the parties having relation thereto, and essential to proof, was privileged. The cases are almost unanimously against such a conclusion. The following are cases collected by Mr. Wigmore (note to section 2336): Gordon v. Tweedy, 71 Ala. 202;Nolen v. Harden, 43 Ark. 307, 51 Am. Rep. 563;Spitz's Appeal, 56 Conn. 184, 14 Atl. 776, 7 Am. St. Rep. 303;Schmied v. Frank, 86 Ind. 250;Sedgwick v. Tucker, 90 Ind. 271;Hunt v. Eaton, 55 Mich. 362, 21 N. W. 429;Safford v. Horne, 72 Miss. 470, 18 South. 433;Darrier v. Darrier, 58 Mo. 222;Wood v. Chetwood, 27 N. J. Eq. 311;Gaskill v. King, 34 N. C. 211;Sackman v. Thomas, 24 Wash. 660, 64 Pac. 819;Crook v. Henry, 25 Wis. 569. See, also, Hanks v. Van Garder, 59 Iowa, 179, 13 N. W. 103;Giddings v. Bank, 104 Iowa, 676, 74 N. W. 21. In Hanks v. Van Garder the question was as to whether testimony of a wife, to the effect that her husband had assigned a certain claim to her, and plainly involving a communication, was within the privilege of the statute, and the holding was against the privilege. In Giddings v. Bank it appeared that the defendant bank had accused plaintiff, F. H. Giddings, of being an embezzler, and had threatened him with a prosecution, unless he gave a mortgage on his homestead to secure the amount owing by him to the bank. It was claimed that Giddings, upon going...