Zimmerman v. Whiteley

• Decision Date: 08 July 1903
• Citation: 95 N.W. 989,134 Mich. 39
• Court: Michigan Supreme Court
• Parties: ZIMMERMAN v. WHITELEY.

95 N.W. 989

134 Mich. 39

ZIMMERMAN v. WHITELEY.

Supreme Court of Michigan

July 8, 1903

Error to Circuit Court, Ingham County; Howard Wiest, Judge.

Action by William F. Zimmerman against Elizabeth Whiteley. Judgment for defendant, and plaintiff brings error. Affirmed.

Q. A. Smith and O. J. Hood (L. B. Gardner, of counsel), for appellant.

Chas F. Hammond (S. L. Kilbourne, of counsel), for appellee.

GRANT J.

Plaintiff brought this suit against the defendant, his mother-in-law to recover damages for the alienation of his wife's affections. His wife is the defendant's only child. Defendant's husband died several years ago, and his daughter and she had lived together since his death. They were members of the Episcopal Church. Plaintiff and his wife were married October 29, 1896. He concedes that it was understood before their marriage that they were to live with the defendant, in her house and home--an arrangement which the defendant very much desired. They lived there until September, 1897, when plaintiff claims that he provided another residence and home for himself and wife, and requested his wife to occupy it with him. She did not go, and plaintiff left defendant's house and his wife.

The conduct of the trial and the plaintiff's ground for recovery are anomalous. According to the plaintiff's own evidence, his wife's affections have not been alienated but at the time he left her at her mother's house she maintained for him a wife's love and affection, and only remained at the home of the defendant through the influence of her mother. He testified that two weeks after he left defendant's house he called every day, and 'everything was quiet and nice. Nellie talked with me and we were in a room by ourselves when we chose, and no interference from Mrs. Whiteley. Everything with Nellie and myself was pleasant.' He testified that, when he asked his wife to accompany him to the house he had prepared, 'Nellie bade me an affectionate good bye. I kissed her. She returned it, and I went away.' He called at defendant's house after that, and she called his wife to see him, and they had a private interview. He further testified: 'I lived in the house in accordance with the understanding before marriage. It was a very good place to live--good table, good rooms. We had the front room, 18 feet sequare, upstairs, dressing room, plenty of furniture. The house was convenient to my work in the Donsereaux Block. Have no further complaints than those stated. [These complaints were that his wife had not always occupied the same bed with him.] * * * Was welcomed by my wife up to the time I came from my father's farm. Don't think I was welcomed by Mrs. Whiteley. She shook hands, and offered to kiss me; but I would not. She made me presents--a watch, an overcoat.

She and Nellie gave me a diamond ring and stud, and some money. Mrs. Whiteley gave me a full-length painted portrait of myself. Talked with my wife about redeeming my father's farm in January or February, 1897. Don't think I talked with Mrs. Whiteley then; did afterwards. I did not get angry about it. I occupied studio rooms of Mrs. Whiteley's before and after marriage, rent free.' Stated in the language of plaintiff's counsel, his claim is that 'the defendant, by her influence and control over Nellie, kept her from occupying the plaintiff's bed, and that her interference in that respect continued and increased, until she had been kept and remained away from the plaintiff, and from occupying his room at night. He then undertook to, and did, procure, furnish, and fit up a suitable residence and house for himself and wife, and used his best efforts to persuade and induce her to come and live with him; that defendant, by her influence and control over Nellie, wrongfully persuaded and induced her to refuse to go and live with her husband.'

Plaintiff called as his first witness the defendant herself, and interrogated her fully as to his relations with her, and the alleged acts of interference by her between him and his wife. Her evidence showed that she treated him with the utmost consideration; that the only occasions on which the wife had left her husband's bed, and spent the nights with her mother, was when she was ill; on one occasion, for two nights in Chicago, when she slept with her mother at plaintiff's suggestion, because her room was better heated, and his wife was ill with a cold; and on another occasion, for two nights, when they were on a visit to his father's, when she slept with her mother at the plaintiff's suggestion, because his room was small and hot. Plaintiff then took the stand, and contradicted her in many of the acts and conversations to which the defendant had testified. He was not compelled to call her, and by calling her he made her his own witness. How far he is bound by her testimony, and how far he could be permitted, under these circumstances, to impeach her, by contradicting her, are questions not argued by counsel, and are, perhaps, not necessary to a determination of the case. See Craig v. Grant, 6 Mich. 447. Neither need we discuss the question whether a husband can maintain this action when, according to his own testimony, his wife still maintains for him the 'love which defies locksmiths.' According to defendant's testimony, and other evidence produced in her behalf, plaintiff left the home which defendant had provided for him and his wife without cause, and for the reason that she would not furnish him money as he desired. He wanted her to pay a mortgage upon his father's farm, spend $5,000 for him to buy a place for a conservatory of music, and deposit in the bank $20,000 for his benefit. Under the arguments and methods pursued by counsel for both parties in the court below and in this court, we must dispose of the errors assigned as though the record showed a proper case by a husband for the alienation of his wife's affections, as no request was made to direct a verdict for the defendant.

1. Plaintiff sought to show by the defendant the amount of property, real and personal, left by her husband, and that it had never been divided between her and her daughter. This was properly excluded. Counsel cite no authority to support the proposition. Reason and common sense condemn it. The wife's property is her own. She is under no legal or moral obligation to spend a dollar to support her husband. It is his duty to support her. The ruling was correct upon another ground. If plaintiff sought to recover damages on account of his wife's wealth, he should have declared specially therefor. The law implies no damages in this action on account of the benefit the husband might derive from her property. They should, therefore, have been specially alleged. Shadock v. Plank Road Co., 79 Mich. 7, 44 N.W. 158; Bateman v. Blake, 81 Mich. 227, 45 N.W. 831.

2. Defendant was permitted to show by disinterested witnesses conversations with plaintiff, prior to his marriage, in which he made inquires as to the wealth of Miss Whiteley and her mother. This testimony was entirely competent, for it tended to show that his purpose in marrying was mercenary, and not for love. Derham v. Derham, 125 Mich. 109, 116, 83 N.W. 1005. For the same reason testimony in regard to his attempts to obtain money from Mrs. Whiteley after marriage was competent.

3. Defendant offered plaintiff's wife as a witness. To this plaintiff objected. Plaintiff in his testimony had repeatedly stated what his wife had said in the various interviews between plaintiff and his wife and the defendant. Defendant's counsel argued that he had waived the privilege by himself testifying to what his wife had said. The court, however, sustained the objection, and the witness did not testify. The offer of this witness is assigned as error. This contention cannot be maintained upon any theory. The defendant's daughter was a competent witness. He might have waived the privilege. He chose not to. Defendant was not under obligation to ask plaintiff or his counsel privately whether he would consent that his wife might be a witness. Defendant was entitled to make the offer in open court. It was also entirely competent for the jury to know that the plaintiff refused to let his wife testify in regard to the words he had himself placed in her mouth. In Rice v. Rice, 104 Mich. 371, 62 N.W. 833, the same offer was made in open court, and the same ruling had.

4. Error is assigned upon the instruction, given at the request of the defendant, that they must be satisfied by a preponderance of the evidence that defendant wrongfully, willfully, and maliciously alientated the affections of her daughter, and upon that portion of the general charge reading as follows: 'The question, therefore, is, was the mother moved by malice toward plaintiff in what the evidence discloses she did, or was she moved by proper parental motives for the welfare and happiness of her child?...