Smith v. Merrill

• Decision Date: 07 January 1890
• Citation: 75 Wis. 461,44 N.W. 759
• Parties: SMITH v. MERRILL.
• Court: Wisconsin Supreme Court

75 Wis. 461

44 N.W. 759

SMITH

v.MERRILL.

Supreme Court of Wisconsin.

Jan. 7, 1890.

Appeal from circuit court, Dodge county; SLOAN, Judge.

This is an action for damages alleged to have been sustained by the plaintiff by reason of the defendant having wrongfully and wickedly debauched and carnally known the plaintiff's wife, Addie, in March, 1887. The answer, after admitting that the plaintiff and Addie were husband and wife, consisted of a general denial. At the close of the trial, the jury returned a verdict in favor of the plaintiff, and assessed his damages at $1,800. From the judgment entered upon said verdict the defendant brings this appeal.J. E. Malone, E. P. Smith, and Finches, Lynde & Miller, for appellant.

J. J. Dick, for respondent.

CASSODAY, J., ( after stating the facts as above.)

1. A careful consideration of the record forces us to the conclusion that there were at least two substantial errors upon the trial. On the plaintiff's direct examination he testified to the effect that he had an altercation with the defendant one night in the spring of 1888, in consequence of the latter's in timacy with his wife; that after that affair took place some papers were drawn; “that a note was written by his wife, the same day the paper was drawn; that he took the original from her bosom, agreed to return it, copied it, and gave it back to her; that he saw his wife write it, and put it in her bosom.” The papers mentioned appear to have been drawn May 2, 1888, and in one of them, signed by the defendant, he promised: “That I will not have anything to do with her, [the plaintiff's wife,] or communicate with her, in the future.” Thereupon the plaintiff's counsel offered in evidence the “copy” of the “note” so claimed to have been made by the plaintiff; and the same was received in evidence, against several objections, and was as follows: “For God's sake! why did you promise him any such thing? He wanted me to promise him, but I would not promise him nothing.” The note of which this is said to be a copy does not appear to have been sent to the defendant, nor to any one. It was simply written by the wife in the presence of her husband, and then retained upon her person. There is no evidence that any one ever saw it before the trial except the wife and her husband. There is no pretense that it was connected with any matter of agency for the husband, and hence was not admissible on that ground. With certain exceptions, it was, at common law, against public policy to allow the wife to be a witness for or against her husband in any action, civil or criminal, to which she was not a party. 1 Whart. Ev. §§ 422, 427; 1 Greenl. Ev. §§ 254, 334, 335. That rule has not been changed by our statute, except as will be presently noticed. Farrell v. Ledwell, 21 Wis. 182;Yager v. Larsen, 22 Wis. 184;Butts v. Newton, 29 Wis. 640;Blabon v. Gilchrist, 67 Wis. 45, 29 N. W. Rep. 220. Section 4072, Rev. St., provides that “a husband or wife shall not be allowed to disclose a confidential communication made by one to the other, during their marriage, without the consent of the other. In an action for criminal conversation, the plaintiff's wife is a competent witness for the defendant as to any matter...