
    Ehrhart, Appellant, v. Bear.
    
      Husband and wife — Criminal conversation — Evidence—Divorce— Conclusiveness of decree — Co-respondent.
    1. In. an action of crim. con. by a divorced husband, where it appears that the defendant was named in the divorce proceedings as a person with whom the wife had committed adultery, but was not made a party, and appeared simply as a witness, the decree in divorce is not • as against the defendant a conclusive adjudication of the fact of adultery.
    2. In such a case the husband may testify that the defendant was a frequenter of his house; but he may not testify that he quarreled and remonstrated with his wife about the attention paid her by defendant; nor will he be permitted to testify that the defendant visited his house “in his absence,” without showing the source of his information.
    3. Under the Act of May 8, 1907, P. L. 184, a divorced wife may, in an action of crim. con. by her husband against the person with whom she was charged in the divorce proceedings with having committed adultery, testify to matters of a confidential nature tending to repel an attack upon her character and conduct; but the act applies only to the wife, and does not permit the husband to testify to matters of a confidential nature occurring before the divorce, although the wife may have testified to such matters on behalf of the defendant. He may, however, deny that he said this or that to his wife in the presence of others, or that a quarrel took place between them, under like circumstances, when such fact had been testified to by the defendant’s witnesses, including the wife.
    4. In an action of crim. con. the defendant may introduce testimony that the cause of the quarrels between the plaintiff and his divorced wife were immoral relations which the plaintiff maintained with a young girl; but if such testimony is introduced, the plaintiff is entitled to prove in rebuttal by the girl herself, that the charge was untrue.
    Argued March. 13, 1912.
    Appeal, No. 15, Oct. T., 1911, by plaintiff, from judgment of C. P. Lancaster Co., Feb. T., 1910, No. 46, on verdict for defendant in case of Hymon Ehrhart v. Ivan S. Bear.
    Before Rice, P. J., Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Trespass from crim. con.
    At the trial it appeared that the plaintiff had been divorced from his wife, and that in the divorce proceedings the wife had been charged with adultery with the defendant and others. The defendant was a witness in the divorce proceedings.
    At the trial the plaintiff was asked this question:
    “Q. State whether or not Ivan S. Bear was a frequenter of your house? A. Yes, sir, he was.”
    The Court: Strike out the answer.
    Answer stricken out. Plaintiff excepts. [1]
    “Q. Was he there in your absence? ”
    Mr. Snyder: That is objected to.
    The Court: He cannot testify to anything that occurred prior to their divorce except the marriage. Disallowed. [2]
    Mr. Davis: I offer to prove that he obtained á divorce. Disallowed. Plaintiff excepts. [3]
    Mr. Davis: I offer to prove that he quarrelled and remonstrated with his wife about the attentions paid to his wife by the defendant.
    Mr. Snyder: Objected to.
    Disallowed. Plaintiff excepts. [4]
    Mr. Davis: “Q. When Mrs. Ehrhart, or the former Mrs. Ehrhart, was on the stand before dinner she said that you sent her down to Mrs. Winower’s place; is that correct?”
    Mr. Snyder: That is objected to.
    The Court: It seems kind of hard, but I do not think he is competent to testify to it. We will disallow it and give you an exception. Exception. [5]
    “Q. It has been testified by Mrs. Ehrhart. and Charles that you had a quarrel at her home about Elsie Miller, this girl that was on the stand, was there any such quarrel about this girl?”
    Mr. Snyder: That is objected to.
    The Court: It seems kind of hard, but I don’t think it is proper to allow him to testify. We will rule it out and give you an exception. He is not competent to testify to anything except the marriage.
    Plaintiff excepts. [6]
    Mr. Davis: I offer to show by this witness Elsie Miller
    
      that there were no improper relations between her and Hymon Ehrhart, and she knew of no quarrel or trouble over her.
    Objected to by defendant.
    The Court: We disallow this and give you an exception. [8]
    Mr. Davis: I offer to prove that I. S. Bear is named as respondent on a charge of adultery in the libel in divorce in this case.
    Disallowed. Plaintiff excepts. [9]
    Plaintiff presented this point:
    1. Hymon Ehrhart, the plaintiff, having obtained a verdict in divorce from his wife, Agnes S. Ehrhart, in a contested suit, in which proceedings, the defendant, Bear, was named as a co-respondent on the ground of adultery, and said Bear having appeared as a witness in said suit for the respondent and a divorce decreed by the court on the ground of adultery, such proceedings are what is known in law as a proceeding in rem and binding upon the whole world, and conclusively established the charge of fact of adultery between Agnes Ehrhart and the dedefendant Ivan S. Bear. Answer: Refused. [18]
    Verdict and judgment for plaintiff for $50.00. Plaintiff appealed.
    
      Errors assigned among others were (1-9) rulings on evidence, quoting the bill of exceptions, and (18) above instruction, quoting it.
    
      B. F. Davis, for appellant.
    — The husband is a competent witness to prove adultery after death, and, also, after a divorce except confidential relations: Homan v. Homan, 12 W. N. C. 86; Hayes’s Est., 23 Pa. Superior Ct. 570; Vaughn v. Clarkson, 19 R. 1.497 (36 Atl. Repr. 1135).
    Recrimination is also a good defense to a libel for divorce; though it is no bar to an action for criminal conversation: Prettyman v. Williamson, 39 Atl. Repr. 731.
    The decree of divorce was conclusive on defendant: Marsh v. Pier, 4 Rawle, 273; Kilheffer v. ¡Herr, 17 S. & R. 319; Lee v. Hammond, 114 Wis. 550 (90 N. W. Repr. 1073); Roney v. Westlake, 216 Pa. 374.
    
      F. Lyman Windolph, with him John E. Snyder, for appellee.
    — At common law neither the husband nor the wife was competent for or against the other: Snyder v. Snyder, 6 Binney, 483; Hitner’s App., 54 Pa. 110; Peck v. Ward, 18 Pa. 506; Dickerman v. Graves, 60 Mass. (6 Cushing) 308; Stein v. Bowman, 38 U. S. (13 Peters) 209; Cornell v. Vanartsdalen, 4 Pa. 364.
    “The effect of this statute (the act of 1907) is to make the wife a competent witness to rebut the attack upon her character or conduct, when her character or conduct is attacked upon the trial of an action brought by her husband:” Keath v. Shiffer, 37 Pa. Superior Ct. 573.
    The evidence, the rejection of which is complained of in the appellant’s eighth assignment of error, was, we think, rightly rejected because the reality or unreality of improper relations between Ehrhart and Elsie Miller had no bearing on the case: Keath v. Shiffer, 26 Lane. L. R. 371; Maberry v. Dudley, 2 Penny. 367.
    The decree in divorce was not conclusive: Coleman’s App., 62 Pa. 252; Kleinert v. Ehlers, 38 Pa. 439; McKendry v. McKendry, 131 Pa. 24; Coney v. Harney, 20 Atl. Repr. 736.
    July 18, 1912:
   Opinion by

Rice, P. J.,

1. Although this defendant was named in the libel in divorce as a person with whom the respondent had committed adultery, he was not a party to that suit in any sense of the term. He was simply a witness. “Parties in the larger legal sense are all persons having a right to control the proceedings, to make defense, to adduce and cross-examine witnesses, and to appeal from the decision if any appeal lies:” 1 Greenleaf on Evidence, sec. 535; Walker v. Phila., 195 Pa. 168. This defendant stood in no such relation to the divorce case, and it is an obvious principle of justice, that no man ought to be bound by proceedings to which, he was a stranger. Therefore the learned trial judge was right in holding that the decree in divorce could not be pleaded against the defendant in this action of crim. con. as a conclusive adjudication of the fact of adultery alleged in the libel.

2. The next question to be -considered is as to the competency of the plaintiff in such action to testify in chief to facts occurring before the dissolution of the marital relation by divorce. Although the plaintiff in this case was properly permitted to testify, in rebuttal, in contradiction of some of the witnesses who had testified against him, the learned court held that he could testify, in chief, only to the fact of marriage. We cannot fully concur in this view. The common-law rule which excluded the husband and wife from giving evidence either for or against each other, is founded partly on their identity of interest, and partly on a principle of public policy which deems it necessary to guard the security and confidence of private life: Hitner’s App., 54 Pa. 110. “And,” said Justice Read in that case, “this extends to cases where the marriage is dissolved by divorce or death, and is not confined to confidential communications.” But in the later case of Peiffer v. Lytle, 58 Pa. 386, the same learned justice explained and distinguished Hitner’s Appeal, and recognized and approved the doctrine of Cornell v. Vanartsdalen, 4 Pa. 364, which doctrine has been recognized and approved in many later cases, amongst which may be cited: Robb’s App., 98 Pa. 501; Dumbach v. Bishop, 183 Pa. 602; Homan v. Homan, 12 W. N. C. 86; Strause v. Braunreuter, 4 Pa. Superior Ct. 263; Hood v. Prudential Ins. Co., 22 Pa. Superior Ct. 244; Hayes’s Est., 23 Pa. Superior. Ct. 570. Thus, in Robb’s Appeal, Justice. Sterrett said, the better and more generally received opinion is that the disqualification which remains after the dissolution of the marital relation!, the witness being otherwise competent, is restricted to communications of a confidential nature, and does not embrace ordinary business transactions and conversations in which others have participated. And in Hayes’s Estate we said: “The reason for the rule of the common law which forbade husband or wife to give testimony tending to criminate the other, although not a party to the suit, was the disturbance of the marital relation which would result from the admission of such testimony. Upon the termination of that relation by the death of one of the parties” (or, we now add, the divorce of the parties) “the reason of the rule ceases, except as to confidential communications, and the rule itself as applied to such a case, has not been established or preserved by the act of 1887.” Thus viewing the subject, it is difficult to see what confidential communication would be divulged or domestic confidence be abused by permitting the plaintiff to testify that the defendant was a frequenter of his house, which was the entire offer embraced in the first assignment. But to permit him to testify (fourth assignment) that he quarreled and remonstrated with his wife about the attention paid her by the defendant, would have been clearly in contravention of the principle enunciated in all the cases cited. For obvious reasons having no relation to the rule under discussion, he was not competent, without the source of his knowledge being shown, to testify that the defendant visited his home “in his absence,” and, therefore, the court committed no error in rejecting that offer. Nor was the plaintiff harmed by the ruling complained of in the third assignment, for he had already testified to the fact of divorce and it was undisputed.

3. The Act of May 8, 1907, P. L. 184, provides that in all civil actions brought by the husband, the wife shall be a competent witness in rebuttal when her character or conduct is attacked upon the trial thereof, but only, in regard to the matter of her character or conduct. The plaintiff’s divorced wife was called as a witness by the defendant and was permitted to testify to matters of a confidential nature, tending to repel the attack upon her character and conduct. As to such matters she was undoubtedly a competent witness, but she was so only by virtue of the act of 1907. But that act deals particularly and exclusively with the disability of the wife. There is not the slightest evidence of an intention on the part of the legislature to remove or modify the common-law disability of the husband to testify, either before or after dissolution of the marital relation, to matters of a confidential nature, and it would be an unwarrantable construction that would extend the act so as to accomplish that result, desirable, on the ground of equality, as it might be. Thus, in Gibson v. Com., 87 Pa. 253, it was held that, though the defendant in a criminal case was competent, under the statute, to testify in his defense, yet his wife was not competent. Justice Gordon said: “It is certain that, before the passage of the above-named acts, neither the defendant nor his wife could have been heard to testify in his defense, and that either is qualified so to do depends upon the terms of the statute.” The same general principle as to the abrogation of a common-law rule by statute, that was applied in that case, is applicable here. Doubtless, the legislature considered that there were good reasons for permitting the wife to defend her character and conduct, and not sufficient reason for changing the common-law rule as to the husband. At any rate, it was a legislative question, and it is not our province, under the guise of construction, to extend the statute beyond its plain words and intent. Hence, we conclude that the plaintiff, in such an action as this, is not competent to divulge, by his testimony in rebuttal, matters of a confidential nature, even though his divorced wife has testified in behalf of the defendant to the same matters. But we cannot agree that the common-law rule is violated by permitting him merely to deny that he said this or that to his wife in the presence of others, or that a quarrel took place between them, under like circumstances, when such fact has been testified to by the defendant’s witnesses, the plaintiff’s divorced wife being one of them. This distinction is recognized in Robb’s Appeal, 98 Pa. 501, and other cases.

4. The defendant introduced testimony which he contended would warrant a jury finding that the plaintiff had immoral relations with a young girl, that this was the subject of frequent quarrels between him and his wife, and that this, and not the cause assigned in the declaration, was the cause of his loss of his wife’s affections and of her comfort, aid and society of which he complained. We cannot say that this evidence was inadmissible, under the pleadings, for the purpose stated, even though it might not amount to a complete defense. See Gilchrist v. Bale, 8 Watts, 355. It is to be noticed that the evidence went farther than to show that they quarreled about the girl. There was evidence that the immoral relations which were the subject of the quarrels actually existed, and it needs no argument to show that such evidence, if uncontradicted, would be very hurtful to the plaintiff’s case. Hence, there was error in rejecting the plaintiff’s offer in rebuttal to prove by the girl herself that the charge was untrue.

Some other minor questions are raised by the assignments of error, which we have duly considered but do not deem it necessary to discuss in detail. We have stated our views upon the main questions, and the grounds upon which we conclude the case must be sent back for retrial. The first, sixth and eighth assignments of error are sustained. All of the others are overruled.

Judgment reversed and venire facias de novo awarded.  