
    Hazel Poppe, Appellant, v. John H. Poppe, Respondent.
    Argued April 8, 1957;
    decided July 3, 1957.
    
      
      John A. Anderson and John H. Hultman for appellant.
    
      Thomas P. Nevin for respondent.
   Fuld, J.

Mr. and Mrs. Poppe, married in 1922, lived together until 1949. In that year, the husband left home and, six years later, Mrs. Poppe, alleging that her husband had abandoned her, brought this action for separation. The husband denied the allegations of the complaint and interposed an affirmative defense that his wife’s cruelty induced and justified his leaving her.

In the ensuing trial, held by the court without a jury, husband and wife were the only witnesses. Mrs. Poppe testified that her husband had abandoned her and had refused to support her. He acknowledged leaving home, bnt offered evidence to establish that conduct on the part of his wife justified his action. Thus, in the course of his testimony, he stated, over objection, that in 1949 his wife had told him that she had had illicit relations “ a number of times ” with another man and that they “thought” that they “would elope and go away together.” Not long after this conversation, he went on to testify, his wife rented the room previously used as their bedroom, moved his own bed into the dining room and took up her quarters on the porch. It was immediately after this that he left to live elsewhere.

At the conclusion of the case, the court found that “ defendant was justified in living separate and apart from plaintiff” and dismissed the complaint. In a short opinion, the judge reaffirmed his belief as to the propriety of the husband’s testimony of what his wife had told him “ to prove cruel and inhuman treatment ”. The Appellate Division affirmed by a divided court and, on this appeal, the sole question presented involves the admissibility of that evidence.

Section 349 of the Civil Practice Act, entitled ‘ Testimony of husband and wife in action or proceeding ”, serves a twofold function; on the one hand, it stamps a husband or wife as “not competent” to testify in a case based on adultery and, on the other, it renders inadmissible “ a confidential communication ” made by one spouse to the other during marriage. Insofar as pertinent, it provides that ‘1 A husband or wife is not competent to testify against the other, upon the trial of an action * * * founded upon an allegation of adultery, except to prove the marriage or disprove the allegation of adultery. * * * A husband or wife shall not be compelled, or without the consent of the other if living, allowed to disclose a confidential communication made by one to the other during marriage.”

The action before us is obviously not “ founded upon an allegation of adultery” and, consequently, the section’s first sentence does not disqualify Mr. Poppe from testifying against his wife. And it is equally obvious that the final sentence of section 349, relating to the marital privilege, does not bar disclosure of Mrs. Poppe’s declaration to her husband. The statute does not render inadmissible all communications between husband and wife, even though made in privacy and when alone. Designed to protect and strengthen the marital bond, it encompasses only those statements that are “ confidential,” that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship. Whether, therefore, a particular communication is to be excluded from evidence on the ground that it is confidential necessarily involves a preliminary question of fact for decision by the trial judge, and it matters not that the ultimate issue for determination by the trier of the facts (here, cruelty) is essentially the same as the issue which determines admissibility. (Prall v. Hinchman, 6 Duer 351, 357; United States v. Cotter, 60 F. 2d 689, 691; McCormick on Evidence [1954], pp. 123-125.)

Depending as it does upon the character of the communication, as well as upon the relationship of the parties, it may be impossible to formulate an all-embracing definition or an infallible guide. It is, however, perfectly clear that the statute was never designed to forbid inquiry into the personal wrongs committed by one spouse against the other, or that it was ever intended to label confidential a communication aimed at destroying the marital relation or stamp with a seal of confidence and protect from disclosure an unfounded charge of adultery or, more to the point, a declaration by a wife that she loves another man, has had improper relations with him and plans to leave home and live with him. (See Lanyon’s Detective Agency v. Cochrane, 240 N. Y. 274, 279, 280-281; Woodrick v. Woodrick, 141 N. Y. 457, 462; de Meli v. de Meli, 120 N. Y. 485, 493; Millspaugh v. Potter, 62 App. Div. 521, 523-524; Fowler v. Fowler, 58 Hun 601, opinion in 11 N. Y. S. 419; see, also, People v. McCormack, 278 App. Div. 191, 196-197, affd. 303 N. Y. 782; United States v. Mitchell, 137 F. 2d 1006,1009; Sexton v. Sexton, 129 Iowa 487, 493 et seq.)

In the Woodrick case (supra, 141 N. Y. 457), for instance, the defendant husband was permitted to testify, over his wife’s objection, of a private interview with her and to relate what each said to the other when he accused her of adultery. In answer to the wife’s argument that the trial judge erred in allowing the communication to be divulged, this court declared that “ We think this evidence was competent [against the wife] on the issue of cruel and inhuman treatment, and the trial judge properly admitted it, stating as he did to the jury that it was not admitted as bearing on the question of adultery ” (p. 462). And in the Cochrane case (supra, 240 N. Y. 274), the court also recognized that no rule or privilege would prevent a wife, plaintiff in a separation suit, from testifying that her husband had told her that “he loved another woman,” was going to live with her and would not be “ coming back home.” It appeared that, after the wife had been so advised by her husband, she hired a detective agency to shadow him in order to obtain evidence of infidelity for use in her separation action against him. The agency procured such evidence and later proceeded to sue the husband for the services rendered the wife on the theory that they constituted a necessity for which he was responsible. Holding that the services were not necessary to enable the wife to successfully maintain her action for separation, the court made this significant statement (pp. 280-281): “ The cruelty, if any, * * * consisted not in these promiscuous acts of intercourse upon the part of her husband, but in his treatment of his wife and the things he said to her * * *. She also knew what the husband had told her as to the cause of his leaving, and could have testified to it in court without the aid and assistance of the detective.” (Emphasis supplied.)

In the case before us, the husband’s statement of what his wife told him was offered on the issue of her cruelty, and the trial court was fully warranted, in admitting it, in deciding that the presumption of confidentiality had been rebutted. (See 8 Wigmore on Evidence [3d ed., 1940], pp. 646-647.) The disclosure related, it is evident, not to the confession of a penitent wife confiding to her husband the story of her wrongdoing, but to a defiant declaration of misconduct and of an intention to persist therein and go away with the other man. No considerations of domestic peace or of conjugal loyalty, no considerations of the sanctity of the marital relation, prohibit disclosure of such a communication. The wife’s statement in the present case, particularly when coupled with her subsequent conduct, not only negated any inference that the statement was induced by any confidence or trust between the parties, but actually demonstrated its absence.

No policy has prohibited one spouse from testifying as to assaultive acts committed by the other, and such testimony has always been admissible on the issue of cruelty. By parity of reasoning, no policy exists, or may properly be advanced, to forbid a husband or .wife from giving evidence, likewise for its bearing on the issue of cruelty, as to statements made by the other which may have an effect no less cruel and no less destructive of the marital relation, though their impact be upon the mind and spirit rather than the body. It has always been recognized that an unfounded charge of infidelity by one spouse to the other is admissible to prove cruelty (see de Meli v. de Meli, supra, 120 N. Y. 485, 493; Millspaugh v. Potter, supra, 62 App. Div. 521,523), and there is no discernible basis for differentiating in this regard between a ‘ ‘ cruel ’ ’ accusation of adultery and an equally cruel ” admission of past infidelity, particularly when to it is added an assertion of planned elopement.

It would be anomalous if it were to be decided that a privilege designed to encourage the marital relation operates to permit one spouse to be cruel to the other as long as the hurt-provoking words are spoken in private. The cloak of secrecy placed about confidential communications between husband and wife could never have been, and was not, designed to force the victim to put up with such conduct. It could never have been, and was not, intended to seal his lips and prevent him from relying upon such behavior as evidence of cruelty in a separation suit subsequently brought or in defense, as here, to a charge of abandonment when, no longer able to bear his mate’s verbal cruelty, he departs the marital home. In short, it would be a paradox to treat as confidential a communication whose unequivocal purpose and inevitable consequence were to destroy all confidence that may have existed.

The cases relied upon by plaintiff wife (Warner v. Press Pub. Co., 132 N. Y. 181; Hanor v. Housel, 128 App. Div. 801; Yax v. Yax, 125 Misc. 851, affd. 217 App. Div. 714) are basically different from the one before us. It is enough to observe that in no one of them was the declaration offered, as it was here, to establish the cruelty of one spouse toward the other, and in none did the communication, by its content or context, give rise to an implication that it was other than confidential.

The judgment should be affirmed.

Froessel, J. (concurring).

I agree that the testimony of the husband in this case was admissible. The communication of the wife could well have been found to have constituted cruel and inhuman treatment. I would reach this result, however, whether or not this particular communication were deemed confidential. As Judge Ftjld recognizes, section 349 of the Civil Practice Act ‘1 was never designed to forbid inquiry into the personal wrongs committed by one spouse against the other ”.

Such exception to the privilege existed at common law (8 Wigmore on Evidence, §§ 2239, 2338; McCormick on Evidence, § 88). It was created both because of the “ necessity ” of avoiding injustice to the excluded spouse [in matrimonial cases, such is often the only evidence such party has], and because of the realization that in such cases the reason for the privilege is absent (see 8 Wigmore on Evidence, § 2239). Our courts without question have repeatedly admitted such testimony in separation actions over these many years. It would astonish the Bench and Bar to hold that in such actions based on cruelty either spouse could seal the lips of the other as to communications directly involved in the issues presented. If that were the rule, one spouse might torture another in secrecy and with complete immunity, and courts would be powerless to intervene. Indeed, as Wigmore puts it, such a situation would work a “ cruel injustice ” (Vol. 8, § 2338, p. 653).

For the foregoing reasons I would affirm.

Van Vooriiis, J. (dissenting).

The important question upon this appeal is whether the trial court should have excluded testimony by a husband who has been sued in a separation action, that his wife told him that she had committed adultery. This testimony was objected to as a confidential communication privileged under section 349 of the Civil Practice Act. The ground of the action is abandonment and nonsupport. The husband’s defense is that his wife’s cruel and inhuman treatment justified him in leaving her. His testimony that she admitted having had illicit relations with another man was introduced upon the theory that it was evidence of cruel and inhuman treatment of the husband by the wife.

Section 349 of the Civil Practice Act states: “ A husband or wife shall not be compelled, or without consent of the other if living, allowed to disclose a confidential communication made by one to the other during marriage.” An admission by a wife to her husband that she has engaged in sexual relations with another man during marriage is a confidential communication within this section. “ A conversation on such a subject between husband and wife seems to us to be clearly within the protection of the statute.” (Warner v. Press Pub. Co., 132 N. Y. 181, 185-186.) Not all communications between husband and wife when alone are confidential, but conversations are which have been induced by the marital relation (Parkhurst v. Berdell, 110 N. Y. 386, 393). This is one of the best known examples of such a conversation.

It is argued that this testimony was not privileged on the theory that this wife was not penitent but made this remark as an affront intended to discountenance the defendant by charging him with being the husband of an adulteress. Such a distinction cannot be observed in practice. An alienated spouse who is an antagonist in a separation action may be depended upon to testify to such a remark in a manner which will render it admissible under so subjective a distinction. It would simply mean, in practice, that all communications of this nature would be admitted in actions between spouses without regard to section 349.

Nothing to the contrary was held in Woodrick v. Woodrick (141 N. Y. 457) or Fowler v. Fowler (58 Hun 601, opinion in 11 N. Y. S. 419). In the Woodrick case, the wife sued the husband for separation, charging him with cruel and inbnmfi.n treatment in having falsely accused her of cohabiting with another man. The husband met her testimony concerning this accusation (admitting that he had made such a charge against her) by testifying to circumstances indicating that he did so in good faith believing it to be true. In Fowler v. Fowler, the wife testified that her husband afterward admitted that his pretended confession had been false, made, as he said, out of whole cloth, with the hope of inducing a similar concession from her in return. The General Term said (p. 420) in deciding the case: “ In other words, this 1 confidential communication ’ from the husband to the wife was a deliberate device to entrap the wife into a confession of guilt on her own part. There is no shield of privilege for such an act as this.”

The testimony in the instant case is of a different character. It is: “ She said she was going out with this man and had relations together, for a number of times, and they also thought they would elope and go away together.” Afterwards she asked her husband to return to live with her, but he refused. There is nothing in this testimony indicating that this communication was made to injure the husband or for any ulterior purpose. For anything that appears to the contrary, it was a simple, unembellished statement of how things stood with Jier at the time when she was speaking. This is an example of the full and free communication between married people which the law encourages, and which section 349 of the Civil Practice Act was enacted to protect (People v. Daghita, 299 N. Y. 194, 198-199; 8 Wigmore on Evidence [3d ed., 1940], § 2285, pp. 531-532; § 2332, pp. 636-637). The object of this provision was, as stated in the opinion written by Judge Conway, as he then was, in People v. Daghita (supra, p. 198), quoting from Chamberlain v. People (23 N. Y. 85, 89): “ ‘ that the most entire confidence may exist between them, and that there may be no apprehension that such confidence can, at any time, or in any event, be violated so far, at least, as regards any testimony or disclosure in a court of justice ’.” It is said that accusations of infidelity, made by one spouse to the other, are admissible in separation actions to prove mental cruelty (de Meli v. de Meli, 120 N. Y. 485). In the leading case just cited, the testimony was that the husband circulated false charges of her adultery among his wife’s friends. No confidential communication was involved. The circumstance that charges of this nature may constitute evidence of cruel and inhuman treatment does not contradict the rule that admissions of adultery hy one spouse to another are privileged under section 349 of the Civil Practice Act. Cruel and inhuman treatment must be proved by competent witnesses and by admissible evidence like other material facts in lawsuits.

Exclusion in separation actions of communications between husband and wife which have been induced by the marriage relation, has a salutary effect upon the use of such actions as a form of legalized blackmail, which is a practice that is occasionally followed by an unscrupulous spouse to bring a more upright marriage partner to heel.

The judgment appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

Burke, J., concurs with Fuld, J.; Froessel, J., concurs in result in a separate opinion in which Desmond and Dye, JJ., concur; Van Voorhis, J., dissents in an opinion in which Conway, Ch. J., concurs.

Judgment affirmed. 
      
      . This privilege must be distinguished from the general incompetency of one spouse to testify against the other — recognized in some states and in the federal courts but not in this state — which is not applicable where the issue is whether one spouse wronged the other. (See 8 Wigmore on Evidence [3d ed., 1940], § 2239; McCormick on Evidence [1954], § 88.) To the contention that the marital privilege for confidential communications may never be asserted in an action between husband and wife, it is sufficient merely to note that section 349 of our Civil Practice Act does not provide that confidential communications between husband and wife “ shall be privileged ” in all cases “ except ” a ease brought by one against the other. (Compare statutes of other jurisdictions expressly providing for such an exception, as well as others: e.g., Cal. Code Civ. Proc., § 1881; Col. Rev. Stats., § 153-1-7, subd. 1; Minn. Stats., § 595.02, subd. [1]; Wis. Stats., 1955, § 325.18; see, also, 2 Wigmore, op. cit., § 488, p. 530 et seq., n. 2, listing statutes; McCormick, op. cit., § 88, p. 177; American Law Institute, Model Code of Evidence [1942], Rule 216; Uniform Rules of Evidence, Rule 28.) Indeed, far from even suggesting that the New York statute does not apply in a suit between the spouses, our courts have always assumed that in a matrimonial action, as in every other, admissibility depends upon whether the communication was a confidential one when made. (See, e.g., Southwick v. Southwick, 49 N. Y. 510, 518-519; Sheldon v. Sheldon, 146 App. Div. 430, 432; Symington V. Symington, 215 App. Div. 553, 556-557.)
     