Smith v. Sheffield
| Decision Date | 11 April 1921 |
| Docket Number | 3511 |
| Citation | 197 P. 605,58 Utah 77 |
| Court | Utah Supreme Court |
| Parties | SMITH v. SHEFFIELD |
Appeal from District Court, First District, Cache County; J. D Call, Judge.
Action by Lorenzo F. Smith against Robert Sheffield.
Verdict and judgment for plaintiff, and the defendant appeals.
REVERSED, and new trial granted.
L. E Nelson, of Logan, for appellant.
Thatcher & Bowen, of Logan, for respondent.
The plaintiff alleges that he and Florence P. Smith were married in 1893, and ever since have been husband and wife; that about four years ago, while plaintiff was living with his wife, the defendant began associating with her, and knowing plaintiff to be her husband, wrongfully and maliciously contrived to injure plaintiff and to deprive him of the comfort, assistance, and affection of his said wife by means of gifts, arts, blandishments, and inducements, and, by continuously associating himself with her, and by talking disparagingly of plaintiff, won to himself the affections of plaintiff's wife, and wholly alienated and destroyed her affections for plaintiff, in consequence of which acts his wife deserted him on June 1, 1918, and has since then refused to live with him, and that in May, 1918, she instituted suit for divorce. Defendant admits that plaintiff and Florence P. Smith are husband and wife, and denies all other allegations of the complaint. Plaintiff introduced evidence tending to support the allegations of his complaint, and evidence to the contrary was produced by defendant. The jury returned a verdict for $ 25,000 in favor of plaintiff. Defendant appeals.
Plaintiff's wife was a witness for defendant. She was permitted by the court to testify on nearly all subjects that had been testified to by the various witnesses for plaintiff. The trial judge was exceedingly liberal to defendant in his rulings. When ruling on an objection to a question propounded to Mrs. Smith, he said that if he were going to err it would be on the side of the woman. She was permitted to answer a number of questions propounded to her by defendant's counsel, and to some of the questions objections were sustained. It is not necessary to specifically refer to these questions, nor to discuss them further than to say that the objection was that the witness was incompetent to testify without the consent of plaintiff, her husband.
Comp. Laws Utah 1917, § 7124, in part reads:
Appellant argues that to hold plaintiff's wife incompetent as a witness against her husband unless his consent be obtained, extends and enlarges the purposes of the statute as expressly stated by the Legislature, and that the purpose of the statute is that a husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, as to any matter or thing which would tend to destroy the confidence growing out of the marriage relation. The statute clearly presents two different situations: First, the disqualification of either husband or wife without the consent of the other to testify at all on any subject for or against the other during the marriage relation; second, neither can, during the marriage or afterwards, be examined by anyone as to any communication made by one to the other while the marriage relation existed. The statute means what it says and is plain, clear, and conclusive. It may be barbaric, and it may, as appellant's counsel suggest, close the mouth of the wife and mother and prevent her from vindicating her honor when assailed in court. The law may be wrong. Possibly it should be liberalized but that cannot be done by judicial construction.
Not a case has been cited by appellant in which the court's decision is based upon a statute the same as that of Utah and hence the authorities from other states relied upon by defendant are not applicable. Sexton v. Sexton, 129 Iowa 487, 105 N.W. 314, 2 L.R.A. (N.S.) 708, is referred to by counsel as sustaining their position that a wife may testify to acts and declarations by her husband tending to show his affection and loss of it in an action to recover damages for the alienation of his affections from her, notwithstanding the statute provided that neither husband nor wife could be examined as to any communication made by the one to the other while married. In the Sexton Case the wife sued her father-in-law for alienation of her husband's affections, and the question was not as to whether she was incompetent as a witness. The statute of Iowa expressly provides that either husband or wife may testify in a civil action by one of them against a third party for alienating the affections of the other. See section 4606, Iowa Code 1907. The decision in Millspaugh v. Potter, 62 A.D. 521, 71 N.Y.S. 134, is based upon a statute which merely forbids, the disclosure of confidential communications by either husband or wife during marriage. In the case of In re Estate of Van Alstine, 26 Utah 193, 72 P. 942, cited by appellant, the part of the statute now under consideration was not involved. The court held that a divorced wife was not disqualified from testifying in a contest involving the probate of her former husband's will as to his condition when under the influence of liquor during the time she was his wife; the statute being intended to exclude only confidential communications, and not facts patent from observation. Michigan has substantially the same statute as Utah except that neither husband nor wife is competent to testify in any action or proceeding instituted by the husband or wife in consequence of adultery. In Perry v. Lovejoy, 49 Mich. 529, 14 N.W. 485, an alienation suit by the husband, a letter from the wife containing indications of affection for her husband was admitted in evidence. The objection that the wife was actually present in court and could testify herself was held to be untenable by the trial court, and in passing upon that ruling the Supreme Court said:
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Johnson v. Richards
... ... for the purpose of showing the state of feelings between the ... husband and the wife, which was one of the vital issues of ... the case. ( Smith v. Sheffield, 58 Utah 77, 197 P ... 605; 1 Nichols' Applied Evidence, Alienation of ... Affections, par. 44; Cole v. Johnson, 103 Ore. 319, 205 ... ...