Seitz v. Seitz

Opinion by Mr. Justice Fell,

On the trial of an issue in a proceeding for divorce in which the respondent had been personally served with the subpoena, the libellant was not allowed to testify to the conduct of her husband which she had witnessed, or to his statements made to her touching the ground of her complaint. Clause C, sec. 5, of the act of May 23,1887, makes either party in a proceeding for divorce competent to testify against the other when personal service of the subpoena or rule to take depositions has been made, or the opposite party appears and defends. The libellant was clearly competent to testify to anything she had seen. The act removes all disqualifications on the ground of interest or policy of law except as provided in sec. 5, and she was within the exception which permits husband and wife to testify against each other.

It has been argued that the statements made by the respondent were properly excluded on the ground that they were confidential communications. Whether a communication is to be considered as confidential depends upon its character as well as upon the relation of the parties. It is essential that it should be made in confidence and with the intention that it should not be divulged. The privilege is based upon considerations of public policy, as in the ease of husband and wife to preserve the peace, harmony and confidence of their relations, and in the case of attorneys and client to secure the unreserved communication which the ends of justice require. If not made because of the relation of the parties and in the confidence which that relation inspires and which it is the policy of the law to hold inviolate, *75 it is not privileged. Ordinarily it might be inferred that communications made by a husband to his wife were made with the intent and in the confidence mentioned, but the circumstances and the nature of the statement repel such a presumption in this case. The disclosures sought to be made, as indicated by the questions objected to, did not relate to the confession of a penitent husband who had confided to his wife the story of his wrongdoing, but to a boastful and defiant declaration of his misconduct and of his intention to openly persist in his course, accompanied by insolent and brutal taunts. No considerations of domestic peace and harmony or of the sanctity of the marital relation forbid their disclosure to redress the wrongs of the injured party. They did not arise from the confidence existing between the parties, but from the want of it.

The question referred to in the first assignment might have been objected to because of its form, and the offer contained in ‘the fourth assignment appears to have been admitted. These assignments are overruled, and the remaining assignments of error are sustained.

The judgment is reversed with a venire facias de novo.