Jameson v. Tully

California Supreme Court Jun 4, 1918 No. Sac. No. 2590. Department One.Published

Before: Richards

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Holding. The court held that while the trial court erred in admitting hearsay confessions of the wife regarding her illicit relations with the defendant, the error was harmless and did not require reversal because the defendant's own admissions provided sufficient evidence to support the verdict.

Issues

Whether letters and oral statements by a wife confessing to adultery are admissible in an alienation of affections action.
Whether a defendant waives an objection to erroneously admitted evidence by cross-examining the witness on that evidence.
Whether the trial court properly excluded the deposition of a witness who was present in the jurisdiction but departed before being called.

Disposition. affirmed

Quotations verified verbatim against the opinion

“They are hearsay pure and simple, and having been written or spoken without the defendant’s consent or presence could, upon no theory of the law or the case, be binding upon him or admissible in evidence against him.”

“The defendant did not waive his objection to the evidence thus offered and admitted on the plaintiff’s behalf.”

“This being so, the error of the court in admitting the plaintiff’s statement of his wife’s confession of her own and the defendant’s guilty conduct cannot be said to have affected the verdict.”

Synopsis

The facts are stated in the opinion of the court.

RICHARDS, J., pro tem

This is an appeal from a judgment in favor of the plaintiff for ten thousand dollars damages in an action charging the defendant with enticing away and seducing the plaintiff’s wife. The complaint is in two counts, one for the enticement and alienation of the plaintiff’s wife, and the other for her seduction. There is no merit in the appellant’s contention that the complaint on each of these counts did not state a cause of action.

The main points upon this appeal arise out of alleged errors of the trial court in the admission of evidence and in the giving of certain instructions to the jury. During the course of the trial the plaintiff offered in evidence certain letters written to him by his wife during her temporary absences from their home. The purpose for which most of these letters were offered was that of showing the affectionate relations between the plaintiff and his wife prior to the exercise of the alleged arts of enticement on the part of the defendant which alienated the wife’s affections from her husband. The objection was that they were privileged communications and as such inadmissible in the absence of consent on the part of the wife. The case of

Humphrey

Pope,

1 Cal. App. 374, [82 Pac. 223], was cited by the appellant in support of this contention. That case, however, arose and was decided prior to the amendment of section 1881 of the Code of Civil Procedure, effected in the year 1911, by which communications between husband and wife were excepted from the class of privileged communications “in an action brought by husband or wife against another person for the alienation of the affections of either husband or wife or in an action for damages against another person for adultery committed by either husband or wife.” That case is, therefore, no longer authority for this contention. The appellant further insists, however, that the statement contained in these letters from the wife to the plaintiff,

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her husband, were inadmissible as hearsay and as self-serving declarations. This contention is answered by the case of

Cripe

Jameson v. Tully

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