Adkins v. Brett

The action involved in the present appeal is one for damages for the alienation by the defendant of the plaintiff’s wife. The cause was tried before a jury, a verdict was returned for the plaintiff, and from the judgment entered upon the verdict the defendant appeals.

The first point made on behalf of the defendant is that the verdict is not supported by the evidence. No question is made but that the evidence supports the conclusion that the husband had lost the affection of his wife, as a result of which she insisted upon a separation, or, if the testimony on behalf of the plaintiff be believed, as it must be taken it was by the jury, that acts of criminal conversation had taken place between the plaintiff’s wife and the defendant. The particular in which it is claimed the evidence is insufficient is, according to counsel’s contention, that it does not show that the defendant lured and enticed the plaintiff’s wife from her husband, was her seducer, so to speak. Passing by

The serious questions in the case arise in connection with the admission of evidence of conversations between the plaintiff and his wife, wherein the latter admitted or stated that she had gone automobile riding with the defendant, had dined with him, had received flowers from him, that he was able to give her a good time and the plaintiff was not, that she intended to continue to accept the defendant’s attentions and the plaintiff could do what he pleased about it, and that he was distasteful to her.

One objection to the evidence of these conversations, which may as well be disposed of at the outset as involving the most elementary principles of evidence, is that they were had without the presence of the defendant. The answer to this objection is that it is wholly immaterial whether the defendant was present or not. [3] The competency of evidence of declarations or statements by a person other than the party to the action against whom they are introduced is not affected merely by the latter’s presence or absence. If the evidence be not competent if the party against whom it is sought to intro

The real objection to such evidence as that under consideration is that it is hearsay. The evidence was plainly relevant, that is, it tended to prove matters in issue, and was, therefore, admissible unless there is some rule of exclusion applicable to it. The only rule of exclusion to which it can be subject is the rule against hearsay. The evidence was, in fact, hearsay, both as to the past matters stated in the conversations and as to the wife’s statements of her then feelings toward the plaintiff and the defendant. [4] But the rule is thoroughly well settled that wlien the intention, feelings, or other mental state of a certain person at a particular time, including his bodily feelings, is material to the issues under trial, evidence of such person’s declarations at the time indicative of his then mental state, even though hearsay, is competent as within an exception to the hearsay rule. [5] In the present ease the state of the wife’s feelings at the time of these conversations, both toward her husband and toward the defendant, was material, and the conversations were indicative of her feelings, and this being so, evidence of them was admissible to show her then state of feelings. This much can hardly be questioned, in view of the settled character of the general rule just stated, its plain applies

The difficulty in regard to such declarations as those involved here lies in the fact that while they may be competent' upon the point of the wife’s feelings, they go very much further. They contain statements as to matters, such as automobile rides, dinners, flowers, and attentions generally by the defendant to the wife, as proof of which the statements are not within any exception to the hearsay rule and are wholly incompetent. The situation is intensified by the fact that those matters are themselves material to the issues, and, if true, very detrimental to the defendant, so that the admission of the evidence involves the placing before the jury of evidence tending to prove matters in issue, for proving which such evidence is not competent, and the proof of which is very prejudicial to the party against whom it is introduced.

[6] Nevertheless, it is clear enough that the evidence, competent for the purpose of showing the state of the wife’s feelings, is not rendered incompetent by the fact that it also tends to prove other material matters, to prove which it is not competent. The rule upon this point, which is one of well-nigh every-day application in actual trial, is thus stated by Wigmore (volume I, page 42) : “In other words, when an evidentiary fact is offered for one purpose, and becomes admissible by satisfying all the rules applicable to it in that capacity, it is not inadmissible because it does not satisfy the rules applicable to it in some other capacity, and because the jury might improperly consider it in the latter capacity. This doctrine, although involving certain risks, is indispensable as a practical rule.”

Cripe v. Cripe, supra, is an illustration of this. A father was sued by the wife of his son for the alienation from her of the son, and at the trial the following question was asked of the father as a witness: “After the marriage of your son and daughter, and before Dolly [the son’s wife] left the ranch at Huasua in August, 1911, did your son ever tell you that Dolly drank to such an extent that he could not control her, or did he ever tell you during that time that she abused him so bad that he could not live with her?” It is plain that as to the facts that the wife drank to excess and abused her

In holding that such evidence is admissible, we are not unaware of the fact that there are decisions to the contrary, and in particular that so far as the testimony actually excluded by them is concerned, Humphrey v. Pope, 1 Cal. App. 374 , [ 82 Pac. 223 ], and Barlow v. Barnes, 172 Cal. 98 , [ 155 Pac. 457 ], are of this character. But in neither of these cases is the point discussed that declarations of the alienated spouse are admissible as competent evidence of his or her feelings at the time, and if they are to be taken as holding that such evidence is not competent for that purpose, they are directly contrary to Gripe v. Gripe, where the point was considered and decided. If Gripe v. Gripe is not to be taken as having fixed the law of this state upon the point, from which Humphrey v. Pope, and Barlow v. Barnes inadvertently depart, the situation is at least one of conflicting decisions, where we are now at liberty to determine which is correct and should be followed. In this situation, there is little question but that Gripe v. Gripe should be followed. It is in accord with the great weight of authority and is but the application in this particular class of cases of a general rule of evidence, thoroughly well settled and applied in every kind of case, civil and criminal. One of the most frequent applications of it in civil cases is the admission of declarations by a testator when his mental capacity or his feelings are material. (Estate of Arnold, 147 Cal. 583 , 594, [ 82 Pac. 252 ].) A notable instance of its application in a criminal case is Commonwealth v. Trefethen, 157 Mass. 180 , [ 24 L. R. A. 235 , 31 N.

The rule, then, is that the admissibility of such evidence as that under discussion, admissible because competent as to one point, is not destroyed by its incompetency as to other points which it yet logically tends to prove. The danger, however, of the jury misusing such evidence and giving it weight in determining the points as to which it is incompetent, is manifest. In such a situation, as Professor Wigmore puts it immediately following the quotation already made, “the only question can be what the proper means are for avoiding the risk of misusing the evidence.” Answering this question, Professor Wigmore says: “It is uniformly conceded that the instruction [to the jury] of the court [that the evidence is competent only as proof of one point and must not be considered as proof of others] suffices for that purpose; and the better opinion is that the opponent of the evidence must ask for that instruction; otherwise he may be supposed to have waived it as unnecessary for his protection. ’ ’ The general correctness of this statement cannot be doubted. But we doubt if the learned author intended to say more than that the opponent of such evidence is always entitled to such an instruction for his protection, if he asks for it, and that generally it will suffice. But it is not difficult to imagine cases where it would not suffice, and the opponent could justly ask for more. The matter is largely one of discretion on the part of the trial judge. If the point to prove which the evidence is competent can just as 'well be proven by other evidence, or if the evidence is of but slight weight or importance upon that point, the trial judge might well be justified in excluding it entirely, because of its prejudicial and

[7] The question, then, in the present case in connection with the evidence of declarations of the wife reduces itself to a question as to whether the defendant was properly protected from the danger of this evidence being misused by the jury, and considered by them as proof of matters other than that for proving which it was admitted. We think that there can be no doubt but that the defendant was not properly protected in this respect.

When the first evidence of a conversation between the plaintiff and his wife of the character of that stated was put in, defendant’s counsel requested an instruction to the jury in effect that the evidence was received only for the purpose of showing the relations between husband and wife, and should not be considered by the jury as proof of the facts narrated by the wife. In response to this request, the judge charged the jury as follows;

“Gentlemen, the court does not at this time or at any time , instruct you as to what has been proven or as to what has not ¡been proven. You are the sole judges of the value and effect of the evidence. It is well, however, to bear in mind the fact that this evidence is being admitted and is being received by the court for the purpose of throwing light and elucidating the issue as to the relations existing between the plaintiff and his wife.”

[8] When evidence of similar conversations was subsequently introduced, a similar request was made and a similar instruction given. It is apparent at once that the instruction was not responsive to the request of defendant’s counsel, and did not meet the situation. The defendant was entitled to a direct, positive, and unqualified instruction that the jury must not consider the evidence as proof of the matters narrated, to prove which the evidence was wholly incompetent. Instead of this the jury was instructed that the court would not instruct them as to what had been proven or not proven, and that they were the sole judges of the value and effect of the evidence, but it was well for them to bear in mind that this evidence was admitted for the purpose of showing the relations between the plaintiff and his wife. There was but one inference which the jury could draw from this, and that was that they were at liberty to consider the evidence as proof of the' matters narrated by the wife, if they so pleased, although they should bear in mind that it was not admitted for that purpose. The effect of this instruction was heightened by an instruction given upon the introduction on behalf of the defendant of evidence of other declarations by the wife. After instructing the jury substantially as in the case of similar evidence on behalf of the plaintiff, the court concluded thus: “In other words, that the declaration of a person, of themselves, or of itself, if it be a declaration, does not necessarily establish the truth of those matters which are alleged to have been stated by the declarant. There must be other proof submitted before you would be justified in assuming it.” It is true that this instruction was given in connection with evidence on behalf of the defendant, so that in this instance the failure properly to limit the effect which the jury could rightly give to the evidence was prejudicial to the respondent and not to the appellant. But the instruction was in line with the instructions which had previously

The effect of these instructions was not removed by anything occurring subsequently. Nothing whatever is said upon the point in the final charge to the jury. The court did at a later time in the trial instruct the jury with regard to certain evidence introduced on behalf of the defendant that “it is to be considered by you only in the light of the instruction which I have heretofore given you, as throwing light upon the question of her [the wife’s] feeling, emotion, sentiments, affection toward her husband, and not for any other purpose.” The evidence to which this charge related was not evidence of declarations by the wife, but of conduct by her with other men subsequent to her alleged intimacy with the defendant, and this difference would tend to prevent the jury from appreciating the fact that it was inconsistent with the instructions previously given. But more than this, it is plain that, under the circumstances of this ease at least, the only charge at all adequate to remove the effect of the previous erroneous instructions would have been one expressly pointed at them, stating that they were incorrect and should not be followed, and laying down the correct rule in sharp distinction from them. No such instruction was given.

Nor was .the error in the respect under discussion a trivial one. The danger of the misuse by the jury of this evidence was great, so great that even the most positive instruction upon the point could hardly remove entirely the effect of the evidence from the mind of the jury. The defendant was entitled to protection against this danger, so far as it could reasonably be given. A positive instruction would at least have minimized its effect. Instead of such an instruction, one was given which practically authorized the use, or rather the misuse, by the jury of the evidence as proof of matters exceedingly detrimental to the defendant and as proof of which it was wholly incompetent. The conflict in the evidence was so sharp, and the evidence which the jury was authorized to use wrongly was so prejudicial to the defendant, that it may well have had a determining influence with

There are other points made on behalf of the defendant, but they are not of such a character that anything would be gained by their discussion. It is sufficient to say for the purposes of a new trial that we have looked into them and find nothing in them. Judgment reversed.

Shaw, J., Lennon, J., Sloane, J., Angellotti, C. J., and Wilbur, J., concurred.