Willey v. Howell

• Decision Date: 15 February 1916
• Citation: 182 S.W. 619,168 Ky. 466
• Parties: WILLEY v. HOWELL.
• Court: Kentucky Court of Appeals

182 S.W. 619

168 Ky. 466

WILLEY v. HOWELL.

Court of Appeals of Kentucky.

February 15, 1916

Appeal from Circuit Court, Hickman County.

Action by E. W. Howell against M. B. Willey. Judgment for plaintiff and defendant appeals. Reversed, and remanded for a new trial.

Robbins & Robbins, of Mayfield, and Joe W. Bennett, of Clinton, for appellant.

J. D Via, of Clinton, and B. C. Seay, of Mayfield, for appellee.

CLARKE J.

This is the second appeal of this case. The opinion rendered by this court on the former appeal is reported in 159 Ky. 805, 169 S.W. 519, and is decisive of several of the quesions presented here.

Upon the last trial the wife of appellee, Mrs. Bessie Howell having procured a divorce from him subsequent to the former trial, was introduced as a witness for appellant, her father. That trial resulted in a verdict in favor of appellee for $5,520 against appellant, who is prosecuting this appeal to reverse the judgment entered thereon. Numerous errors are assigned as grounds for a new trial, but error in the trial court's refusal to permit the divorced wife of appellee to testify about certain matters is the principal ground relied upon by counsel for appellant for a reversal of the judgment. The testimony thus rejected is presented to us in six avowals.

1. The first avowal contains a statement by Mrs. Bessie Howell of a conversation she had with her father a short time before her separation from appellee, in which she told her father, the appellant, of the existence and nature of the trouble between her and her husband; that he had a loathesome venereal disease and cruelly accused her of giving it to him, and of her purpose to leave him.

Under section 606 of the Civil Code neither the husband nor the wife may testify concerning any communication between them during marriage, even after the relationship is terminated. This court in Commonwealth v. Sapp, 90 Ky. 580, 14 S.W. 834, 29 Am. St. Rep. 405, and other cases, has held that the word "communication" in this section should not be confined to statements between husband and wife, but should be construed to embrace all knowledge upon the part of one or the other obtained by reason of the marriage relation, and which, but for the confidence growing out of it, would not have been known to the party, and to that construction we adhere. Nevertheless the witness should have been permitted to tell whether or not she told her father of appellee's treatment of her, and, if so, when and what she told him. The fact that she imparted this information to her father and what she told him are not within the prohibition of the above section as construed, and it was highly prejudicial to appellant to deny him this evidence, as the very gist of the action against him was whether or not he acted reasonably and in good faith in what he said and did thereafter. She had a right, when troubles arose between her and her husband, to apply to her father for advice and succor, and it was necessary that the jury in trying this case, in order to determine whether the father was acting wrongfully and maliciously, or in good faith and as he had a right to do, to know what actuated him. Therefore he had a right to present to the jury evidence of what his daughter had told him about her husband's treatment of her, so that the jury might know what was operating upon his mind in what he said or did, if anything, with reference to the separation of these people. Without knowing what had been told him by his daughter the jury would not know under what information he was acting, and could not determine whether he was acting rightfully or wrongfully.

It is true he was permitted to testify what his daughter had told him in justification of what he did and said in reference to the separation; but he was also entitled to have his testimony on that point corroborated by his daughter's testimony, if she was a competent witness for that purpose. The jury might have disbelieved him unsupported, and believed him when corroborated by his daughter. The daughter could not, of course, testify to the jury whether or not, as a matter of fact, appellee did have this disease, or did make the accusation against her; and she did not attempt to do that. It was immaterial, so far as appellant's good faith was concerned, whether or not it was true that appellee had the loathesome disease, or had accused his wife of giving it to him. That his daughter had so told him, and he believed her statements, was sufficient to justify reasonable actions upon his part in her behalf. She...