Swearingen v. Vik, 33583

• Decision Date: 07 March 1958
• Docket Number: No. 33583,33583
• Court: Washington Supreme Court
• Parties: Curtis T. SWEARINGEN, Respondent, v. Leonard VIK, Appellant.

Page 843

51 Wn.2d 843

322 P.2d 876

Curtis T. SWEARINGEN, Respondent, v. Leonard VIK, Appellant.

No. 33583.

Supreme Court of Washington, En Banc.

March 7, 1958.

Thomas B. Gess, Kennewick, James Leavy, Duane E. Taber, Pasco, for appellant.

Critchlow & Williams, Richland, for respondent.

FINLEY, Justice.

This is an action for alienation of affections, instituted by plaintiff Swearingen against defendant Vik.

The complaint alleged that the defendant Vik, knowingly and willfully, induced Mrs. Swearingen to keep company with him and to join him on trips; that on such occasions he consorted with her in an improper and unlawful manner that, as a result, Mrs. Swearingen divorced plaintiff-husband; that he has been damaged by defendant, because of the loss of his wife's affections, in the sum of $35,000. These allegations were denied by the defendant. After trial, the jury returned a verdict against the defendant in the sum of $4,200. He has appealed.

Although there is an unusually sharp conflict in the evidence, the jury could have found the following facts: Swearingen and his wife were married on July 13, 1949. They both worked on the Hanford project and lived in Richland. On the whole, they were happy together, but their marriage was not without some disagreements. They once went to see an attorney about a divorce, but went home and forgot about it.

Swearingen contracted pulmonary tuberculosis and went to a hospital in Selah on May 28, 1952. He was there for about six weeks. His wife went to see him every Sunday, took him magazines, and was 'very gracious and loving.' Later, he was transferred to the Veteran's Hospital at Walla Walla, and his wife continued to visit him almost every Sunday. However, early in 1953, her attitude seemed to change, and she did not go to see him so often and was not as affectionate as formerly. On two occasions when Swearingen went home for a visit he found cigar ashes in the ashtray of the car. He did not smoke cigars, and his wife explained, upon his inquiry, that the ashes had been left by traveling salesmen.

Swearingen was discharged from the hospital on April 16, 1954. His wife went to bring him home. They commenced quarreling as they were driving back from the hospital. The quarrel reached such proportions that when they arrived in town they went to an attorney's office, and she commenced a divorce action.

About a week later, Swearingen received a telephone call from a Mrs. Elizabeth Johnson, who persuaded him to drive with her past a house owned by appellant Vik. They saw Mrs. Swearingen's car in front of the house, parked alongside Mr. Vik's car. This was about nine o'clock in the evening. About an hour later, they returned to appellant Vik's house. The lights were out, and the cars were still there. Swearingen noted the same situation later during the same night and again on the following night.

About a month after that incident, Swearingen met Vik and told him: "Mr. Vik, I want you to leave my wife alone and quit running after her until she gets her divorce." Vik replied: "Nobody tells me who I can run around with." Vik then had respondent arrested for third degree assault.

One witness testified to having seen Vik and Mrs. Swearingen together at a company dance while Swearingen was still in the hospital; another, that he saw them driving together; and another witness said that he had seen them together at a restaurant, drinking beer, on the evening that the divorce action was commenced. Another witness testified that he had seen them together at a movie; another, to having seen them playing 'blackjack' at Harold's in Reno; another, to having seen them both in the yard of the house owned by Vik, and to having seen Mrs. Swearingen in Vik's house; and still another testified to having seen them both carrying something out of that house to Vik's car. As heretofore stated, all of this testimony was sharply disputed. One thing that is clear from the record is that somebody lied. Apparently, the jury believed Swearingen's witnesses, and it returned a verdict against Vik.

We are satisfied that there was sufficient evidence, although it was all circumstantial, to go to the jury, and that the court did not err in denying appellant Vik's motion for judgment notwithstanding the verdict.

Appellant assigns error to the ruling of the trial court that Mrs. Swearingen could not testify as to confidential matters between herself and her husband, Mr. Swearingen. The ruling of the trial court, ostensibly, was based on RCW 5.60.060, the pertinent parts of which read:

'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, nor a wife for or against her husband without the consent of the husband nor shall either during marriage or afterwards, be without the consent of the other, examined as to any communication made by one to the other during marriage. This exception shall not apply to a civil action or proceeding by one against the other, or to a criminal action or proceeding for a crime committed by one against the other; * * *'

In State v. Thorne, 1953, 43 Wash.2d 47, 260 P.2d 331, 336, this court had occasion to discuss the differences between the two privileges established by this statute:

'It must be noted that there are two distinct parts to this section of the statute. The first pertains to the marital privilege; it says, in effect, that no spouse shall be examined as a witness for or against the other spouse without the consent of such other spouse. State v. Clark, 1946, 26 Wash.2d 160, 173 P.2d 189. The second part sets out an entirely separate and distinct privilege relating to confidential communications; it says that neither spouse can ever, without the consent of the other, be examined as to confidential communications made by one to the other during the marriage. There is a substantial difference between these two privileges and the reasons for them which the courts have not always recognized. 8 Wigmore on Evidence (3d ed.) 638, § 2334; 5 Jones on Evidence (2d ed.) 4000, § 2128.

'The first of these, the privilege of one spouse against having the other testify, spreads its shelter over an existing marriage. While the privilege covers acts before marriage, State v. McGinty, 1942, 14 Wash.2d 71, 126 P.2d 1086, it ceases upon divorce or death. The reason usually given for this privilege is that it fosters domestic harmony and prevents discord. 8 Wigmore on Evidence (3d ed.) 221, et seq., §§ 2227, 2228; 5 Jones on Evidence (2d ed.) 4001, § 2128.

'The second, the privilege against having the husband or wife testify as to confidential communications between the two, rests upon an entirely different foundation. It endeavors to encourage between husband and wife that free interchange of confidences that is necessary for mutual understanding and trust. It is thought that the greatest benefits will flow from the relationship only if the spouse who confides in the other can do so without the fear that at some later time what has been said will rise up to haunt the speaker. As Jones puts it, the purpose is

"* * * to keep inviolate those acts and confidences without which no two persons would wish to live in intimate and constant relation as man and wife.' 5 Jones on Evidence (2d ed.) 4001, § 2128.

'In many cases, analogous factors may be seen between this privilege against the disclosure of confidential communications between husband and wife and those privileges surrounding the confidential communications between attorney-client, priest-penitent, and physician-patient. The privilege against divulgence of confidential communications survives death or divorce. It applies to all actually successful confidential...