Leucht v. Leucht.

and his conduct and declarations indicating a loss of his

affection.

3. Same. In an action for the alienation of a husband's affections, declarations by defendant in the presence of the wife or other persons, manifesting a purpose to alienate the affection of the husband, or to cause a separation, are admissible. 4. Witnesses-Competency-Communications Between Husband an action

and Wife-Admissibility-"Communication."-In

for the alienation of a husband's affections, statements to the wife by the husband in the absence of any other person, indicating that defendant was trying to separate the wife and the husband, are within Civil Code Prac., section 606, forbidding either husband or wife to testify as to any communication between them during the marriage; the word "communication" embracing all knowledge on 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.

5. Husband and Wife-Alienation of Affections-Actions-Evidence. In an action for the alienation of a husband's affections, evidence that plaintiff had made a disrespectful remark about her husband was competent to prove the state of her feeling towards her husband, to illustrate the extent of her affection and the part she took in causing the loss of his affections.

FRANK M. TRACY for appellant.

CLASSIFICATION UNDER RULE XVII.

1. The court erred in permitting the contradiction of appellant on matters irrelevant and immaterial to the issue. (Kennedy v. Commonwealth, 14 Bush, 357; Loving v. Commonwealth, 30 Ky.,

551.)

2. The court erred in refusing to admit proof of the divorce proceeding instituted by the husband against his wife.

3. The court erred in admitting the testimony of Charles Hardebeck.

4. The court erred in its construction of section 606 of the Code.

(a.) The Legislature intended to enact the common law rule and the Code should be construed in the light of the common law construction. (Greenleaf, section 254; 6 Ency. of Evd., 894;

Leucht v. Leucht.

Arnett v. Commonwealth, 114 Ky., 593; Shepard v. Commonwealth, 85 S. W., 191; 28 Ky. Law Rep., 376; Ditto v. Slaughter, 92 S, W., 2; 28 Ky. Law Rep., 1164.)

(b.) The Legislative purpose is entirely out of harmony with a construction excluding all communications between husband and wife. Statutes of other states identical in language with section 606 of our Code have been construed so as to express the common law rule. (Wigmore on Evidence, sec. 2336; Sexton v. Sexton, 129 Iowa, 387; Hardwick v. Hardwick, 130 Iowa, 230; Sackman v. Thomas, 24 Wash.,, 660; Hageman v. Wignett, 108 Mich., 194; In Re Van Alstine, 26 Utah, 198; Spivey v. Platon's Admr., 29 Ark., 605; Insurance Co. v. Shoemaker, 95 Tenn., 72; Stanley v. Stanley, 112 Ind., 143; Poulson v. Stanley, 122 Cal., 655.)

(c.) The exceptions mentioned in section 606 of the Code qualify the rule prohibiting husband and wife from testifying against one another and not the rule relating to communications between husband and wife.

5. Only confidential or marital communications are excluded under our Code.

(a.) Communications made in the known presence of third parties are not confidential. (Sessions v. Trevitt, 390 S. W., 267; Fay v. Guynon, 131 Mass., 31; Insurance Company v. Shoemaker, 95 Tenn., 72; Re Buckkman, 64 Vt., 314; Lyons v. Prouty, 154 Mass., 490; Long v. Martin, 152 Mo., 674.)

(b.) Mere business transactions cannot be considered privileged. (Dittoe v. Slaughter, 92 S. W. (Ky.) 2; Gordon Rankin Co. v. Tweedy, 71 Ala., 210; Gidding v. Savings Bank, 104 Iowa, 679; Cook v. Henry, 25 Wis., 570; Spivey v. Platon's Admr., 29 Ark., 605; Parkhurst v. Bardell, 110 N. Y., 222; Hageman v. Wignett, 108 Mich., 194.)

(c.) Mistreatment of wife by the husband cannot be considered privileged. (Seitz v. Seitz, 170 Pa. St., 71; Polsen v. State, 137 Ind., 524; Rudd v. Rounds, 64 Vt., 441; State v. Luper, 91 Pac. (Oregon) 444; Schmeid v. Frank, 86 Ind., 250; Yowell v. Vaugh, 85 Mo. App., 206.)

H. M. McLEAN for appellee.

CONCLUSION.

The judgment of the lower court should be sustained, because tnere was no error committed:

1. In permitting appellee to prove by the workmen, Whitcomb,

Leucht v. Leucht.

Atkinson, and others, that appellant had herself paid them for work done for the family, thus showing, the confidence and trust confided in appellant by the husband in permitting her to handle and disburse the money of the household.

2. In excluding the record of the action for divorce by the husband. Appellant having failed to make the rejected record a part of the record of this case this court has nothing before it upon which to determine whether or not an error was committed. 3. In overruling appellant's objection to the testimony of the witness, Charles Hardebeck. Any testimony which tended to show the state of the wife's feelings toward her husband, was clearly admissible upon the measure of damages.

4. In excluding all testimony of wife of communications between husband and wife. This testimony was rightly excluded because: First, the Civil Code expressly provides, that husband and wife cannot testify as to any communication between them during marriage or afterwards; second, because our courts have held that "Any Communication" means in effect "All Communications;" third, because our Statute having expressly provided the exceptions as to which the privilege shall not apply, should be taken as excluding all other exceptions against the rule; fourth, because the construction placed upon section 606 of the Civil Code is supported by the weight of authority in other states, and is the only logical construction that could be placed upon the section; fifth, because the declarations sought to be testified to were narrations of past occurrences, and excluded under the rule against hearsay testimony; sixth, in limiting the use to which the declarations of husband to third parties might be applied.

AUTHORITIES CITED.

Greenleaf on Evidence, 16th ed., 443 B.-254; Wharton on Evldence, 3rd ed., 559, 259; Phillips on Evidence, 3rd ed., 189; sec. 606 Civil Code of Kentucky; Commonwealth v. Minor, 89 Ky., 555; Hilbert, Jr., v. Commonwealth, 21 Ky. Law Rep., 537; Arnett v. Commonwealth, 114 Ky., 596; Bright v. Commonwealth, 86 S. W., 527; 27 Ky. Law Rep., 677; State v. Luper, 91 Pac. 444 (Oregon); Manhattan Life Ins. Co. v. Beard, 66 S. W., 35; 23 Ky. Law Rep., 1747; Buckel, et al., v. Smith's Admr., 82 S. W., 235; 26 Ky Law Rep., 494; New York Life Ins. Co. v. Johnson, Admr., 72 S W., 762; 24 Ky. Law Rep., 1867; Ency. of Evd., vol. 6, p. 894; Sackman v. Thomas, 24 Wash., 660; Hageman v. Wigent, 108 Mich., 192; Chattock v. Chattock, 134 Mich., 49; Van Alstine, 26

Leucht v. Leucht.

Utah, 193; Spivey, et al., v. Platon's Admr., 29 Ark., 603; Hannaford, et al., v. Dawdly, et al., 86 S. W., 818; Insurance Co. v. Shoemaker, 95 Tenn., 72; Brewer v. Ferguson, 30 Tean., 565; Atanley v. Stanley, 112 Ind., 145; Polson v. State, 137 Ind., 824; Smith v. Smith, 77 Ind., 82; Schmeid v. Frank, 86 Ind., 250; Higham v. Vanosdol, 101 Ind., 160; Poulson v. Stanley, Admr., 122 Cal., 655; Emons v. Barton, 109 Cal., 663; Dolan v. Leary, et al., 68 N. Y. S., 91; People v. Hayes, 140 N. Y., 484; State Bank of Chatham N. Y. v. Hutchison, et al., 61 Pac, 443 (Kan.); Chicago, Kan. & Neb. Ry. Co. v. Ellis, 52 Kan., 41; Godrum v. State of Georgia, 60 Ga., 509; Dodge v. Rush, 28 App. D. C., 149; Yokem by Guardian, &c., v. R. T. Hicks Admr., et al., 93 Ill. App., 667; Leveridge, et al., v. Evans, et ux., 86 N. W., 283 (Iowa); White v. White, et al., 112 N. W., 627 (Minn.); State v. Ulrich, 110 Mo., 364; Stiles v. State, 68 S. W., 993 (Texas); Robin, et al., v. King, 2 Leighs Rep. Ct. App. Va., 140; Am. & Eng. Ency. of Law, vol. 212, p. 99 (1st ed.); Greenleaf on Evidence, vol. 1, sec. 110 (14th ed.); Westlake v. Westlake, 34 Ohio St., 634; Derham v. Derham, 1225 Mich., 109; Huling v. Huling, 32 Ill. App., 520; Love v. Love, 90 Mo. App., 571; Stanley v. Stanley, 27 Wash., 574; Preston v. Bowers, 13 Ohio St., 1; Bryon Edgell Lewis Francis, 66 Mich., 303; Billings v. Albright, 66 N. Y. App. Div., 239; Hardwick v. Hardwick, 106 N. Y., 639 (Iowa); Humphrey v. Pope, 82 Pac., 223; Williams v. Williams, 20 Col.. 52; Tenney v. Evans, 14 N. H., 343; Sessions v. Little, 9 N. H., 271; Sexton v. Sexton, 105 N. W., 314 (Iowa 1905); Nevins v. Nevins, 75 Pa., 492 (Kan.); Edgell v. Francis, 66 Mich., 303.

OPINION OF THE COURT BY JUDGE CARROLL--Affirming.

This is an action by appellant, who was plaintiff below, to recover damages for the alienation of her husband's affections by the appellee, defendant below, who was his mother. There was a judgment in favor of appellee upon the verdict of a jury who found in her behalf.

A reversal is asked for alleged errors of the court in admitting and rejecting evidence. The rulings chiefly complained of are, first, the exclusion of evidence offered by appellant relating to statements made

Leucht v. Leucht.

made by the husband of appellant in the absence of other persons, which statements indicated that his mother was endeavoring to cause a separation between her son and his wife; and, second, the competency of statements of a similar character said to have been made by the husband of appellant in the absence of his mother to third persons, who gave evidence concerning them in behalf of appellant. In admitting the statements to third persons, the court instructed the jury in respect to them as follows: "The jury is instructed that the declarations of Louis Leucht to third persons as testified to by said parties, not made in the presence of the defendant Barbara Leucht, were admitted, and are to be considered, solely for the purpose of showing the state of mind and feeling of the said Louis Leucht, if they do show such state of mind and feeling, and for the purpose of disclosing or explaining the motives influencing his action or conduct, if they do disclose or explain such motive; and they are to be considered by the jury for no other purpose. In our opinion the court correctly excluded the statements made to appellant by her husband, and erred to the prejudice of appellee in admitting the statements made by him to third parties, although the effect of this evidence was limited by the instruction. The statements made to appellant by her husband were incompetent, first, because they were made in the absence of his mother, and come under the head of what may be called "hearsay" evidence; second, because they are forbidden by subsection 1 of section 606 of the Civil Code of Practice, reading in part as follows: "Neither a husband nor his wife shall testify while the marriage exists or afterwards, concerning any communication between them during marriage.” The statements made by the husband to third parties

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