Stanley v. Stanley

• Decision Date: 10 March 1902
• Court: Washington Supreme Court
• Parties: STANLEY v. STANLEY et al.

68 P. 187

27 Wash. 570

STANLEY v. STANLEY et al.

Supreme Court of Washington

March 10, 1902

Appeal from superior court, King county; George Meade Emory, Judge.

Action by Ella M. Stanley against William M. Stanley and another. There was a judgment for plaintiff, and defendants appeal. Reversed.

Lewis Hardin & Albertson, for appellants.

W. F Hays and J. P. Houser, for respondent.

MOUNT J.

Appellants are husband and wife; the respondent is their daughter-in-law. This action was brought by the plaintiff in the court below (respondent here) to recover damages from the defendants for alienating the affections of the husband of plaintiff. The cause was tried before the court and jury, and a verdict and judgment for $8,000 resulted in favor of respondent. From this judgment appeal is prosecuted.

Errors were alleged as follows: (1) That the trial court erred in permitting certain evidence of John Arthur, an attorney employed by appellants. Mr. Arthur, after testifying that he was an attorney at law, stated that in the winter of 1898-99 he was employed by the appellants to bring and conduct a suit for divorce in a case wherein John Stanley appellants' son, was plaintiff, and the respondent was defendant; that the complaint was prepared upon information furnished by appellants, and also upon information obtained from the court records in another case between respondent and her husband; that he had never seen John Stanley until his parents brought him into Arthur's office the day before the complaint in the divorce case was filed, viz., about July 5, 1899. This testimony was simply that he was employed by the appellants, William Stanley and Sarah E. Stanley, and prepared the complaint in Stanley v. Stanley upon information furnished by appellants, subsequently verified by the court's records in another case. He did not testify, nor was he asked to state, what this information was. The rule is well settled that an attorney is not privileged from disclosing by whom he was employed in the management of a case. 1 Greenl. Ev. § 245; Weeks, Attys. 321; 2 Rice, Ev. 644; Chirac v. Reinicker, 11 Wheat. 280 6 L.Ed. 474; Satterlee v. Bliss, 36 Cal. 489; Grower v. Emery, 18 Me. 79; Brown v. Payson, 6 N. H. 443; Railway Co. v. Yeates, 67 Ala. 164; Williams v. Blumenthal (Wash.) 67 P. 393. All the authorities cited by appellants upon this point go to the question of communications made by the client to the attorney, or advice given thereon, in the course of professional employment. As to such communications there is no great conflict of authority. But, as we have seen above, this question is not involved here. No communication of this character was sought or disclosed. The question simply was as to who employed Mr. Arthur in the divorce case of Stanley v. Stanley. As to this he was obliged to answer, and no error was committed by the lower court in this respect.

2. Appellants next allege error of the court in permitting John Arthur to testify concerning the wealth of appellants, for the reason that this information was obtained in a confidential manner. It is questionable from the record whether this point can be raised upon this appeal, because no objection was made to it upon that ground. However that may be, there were other witnesses who testified as to the wealth of appellants without objection, and no question is raised here as to the materiality of that evidence. Hence, even if it was error to admit the evidence of Mr. Arthur, the error was harmless, because there was proper evidence upon this subject much stronger than the evidence of Mr. Arthur.

3. John Stanley, the son of appellants, and the husband of the respondent, was called as a witness for the appellants (defendants below), and asked the following question: 'Did you ever hear your mother, in the presence of your wife, or anybody else's presence, say that you would not have a dollar of your father's money if you went back to your wife?' This question was objected to on the ground that under the statute the witness was disqualified from testifying against his wife. The objection, we think, was properly sustained, under the statute (section 5994, Ballinger's Ann. Codes & St.), which provides: 'The following persons shall not be examined as witnesses: (1) A husband shall not be examined for or against his wife without the consent of the wife,' etc. In this case the wife was the plaintiff, suing the mother and father of her husband. The husband was called as a witness against the wife, and she objected to her husband testifying. Such witness falls squarely within the inhibition of the statute. State v. Halbert, 14 Wash. 306, 44 P. 538; Speak v. Gray, 14 Wash. 589, 45 P. 143.

4. Mrs Cole, a witness for plaintiff, was permitted, over the objection of the appellants, to testify that in August, 1900, she heard a conversation between plaintiff and her husband, John Stanley, in which conversation John Stanley asked plaintiff 'to go and live with him; but he did not want his parents to know about it. At that time he had her sitting on his lap, and kissed her and embraced her. She refused.' It is claimed that the court erred in permitting this evidence. The separation between respondent and her husband occurred July 5, 1897. This action was begun in February, 1900. This conversation occurred more than two years after the separation, and some six months after the action was begun. It was not shown in the record, nor attempted to be shown, that the appellants ever authorized or knew anything about this conversation. This evidence shows an affection of the husband for the wife at the time the conversation occurred, and also that the husband at that time desired to live clandestinely with her, without the knowledge of his parents. The inference is that the appellants caused the separation, and were adverse to the husband's society with his wife. It is well settled that acts and declarations of the husband in a case like this may be shown at and prior to the time of separation, for the purpose of showing affection. I Greenl. Ev. (16th Ed.) § 162d; Lockwood v. Lockwood (Minn.) 70 N.W. 784; Williams v. Williams (Colo. Sup.) 37 P. 614; Baker v. Baker, 16 Abb. N.C. 293; Rubenstein v. Rubenstein (Sup.) 69 N.Y.S. 1067. Whatever may be shown before separation is for the purpose of showing affection at the time of separation. Declarations of either husband or wife, made so long after the separation as not to be a part of it, cannot be competent against defendants. In the case of Rubenstein v. Rubenstein, supra,--a case like the one now under consideration,--the court said: 'A letter written to the plaintiff by her husband was offered to show the existence of affectionate relations between them, and it was admitted on the ground that it had some bearing upon the question of damages. It was not admissible for any purpose. It was written two years or more after this action was begun. A letter of that character, if written while the parties were living together, might have been admissible to show that the plaintiff and her husband, prior to any alleged act of interference on the part of the defendant, were living in harmonious relations; but her husband's declarations, made so long after the action was begun, were not competent against the defendant.' In the case of Fratini v. Caslini, 66 Vt. 273, 29 A. 252, 44 Am. St. Rep. 843, the court says: 'Defendant also offered to show generally her complaints and declarations of and concerning her husband's treatment of her, made after trouble began as aforesaid, but was limited in time to those made before trouble began; and this was right.' In the case of Preston v. Bowers, 13 Ohio St. 1, 82 Am. Dec. 430, it is said: 'The plaintiff had a right to give the declaration of his wife in evidence, to show the state of her affections toward him recently before the alleged seduction. But the exercise of a right and the abuse of a right are two very different things. The words and acts of the defendant, Griffin, reported by the wife to the husband, and detailed by him in evidence to the jury, were nothing but hearsay, and, in themselves, clearly inadmissible.' In 1 Phil. Ev. (3d Ed.) p. 189, the rule is stated as follows: 'In cases where it is material to inquire into the demeanor, the conduct, and mental feelings of an individual at a particular period, the expressions used by the individual at the period in question are, in their nature, original evidence. For they are the thing itself which is inquired into, as far as outward behavior is important; and as evidence of inward sentiments, that are unlike a statement of past occurrences, for they derive their credit from being usually identified with, and naturally resulting from, particular corresponding feelings. Accordingly, in actions for criminal conversation, where it is material to inquire into the terms upon which the husband and wife lived together before the connection of the wife with the defendant, it is usual to give evidence of what the husband and wife have said to each other, in order to show their demeanor and conduct, and whether they were living upon better or worse terms. With the same object, evidence has been given of the anxiety expressed by the wife about her husband, and of her mode of speaking of him in his absence. On the other hand, it is admissible to give general evidence, in reduction of damages, that the wife had complained of her husband's treatment. The letters of the wife to the husband, or, as it has been recently decided, the letters of the wife to a third person with reference to her husband, are evidence to show what her feelings were towards him. In such cases the jury do not substitute the knowledge of an absent person for their own, but they reason as from an effect to a cause. It...