HENDRICKSON v. HARRY.

ON REHEARING.

1. WITNESSES-COMPETENCY-HUSBAND AND WIFE-DIVORCED WIFE — ALIENATION OF AFFECTIONS.

In an action by a husband for the alienation of his wife's affections, the divorced wife was a competent witness as to acts of physical violence by plaintiff toward her, and her feeling toward, and affection for, him; the action not being instituted in consequence of adultery. 3 Comp. Laws 1915, §§ 12551, 12555.

2. SAME-APPEAL AND ERROR-EVIDENCE.

In such action, where the trial court, following a colloquy between court and counsel, stated he understood the divorced wife was offered as a witness for the purpose of showing acts of physical violence, and plaintiff's counsel made no suggestion that the court misunderstood the offer, the Supreme Court, on appeal, will regard the incident as an offer made and denied to prove assault upon the wife by plaintiff.

3. SAME-HUSBAND AND WIFE-EVIDENCE-ADMISSIBILITY. The divorced wife, being a competent witness, generally, is subject to cross-examination like any other witness, except that she may not testify as to communications between herself and husband during coverture.

4. HUSBAND AND WIFE-ALIENATION OF AFFECTIONS-DAMAGES. The mere fact that a husband and wife are not, for a period, on friendly terms, is no excuse for an outsider to interfere in their domestic relations, although the real injury he may do may be less than where happy family relations are destroyed.

Error to Houghton; O'Brien, J. Submitted April 10, 1917. (Docket No. 131.) Decided September 27, 1917. Resubmitted March 5, 1918. Former opinion reversed March 27, 1918.

Case by William Hendrickson against Absalom Harry for the alienation of his wife's affections. Judgment for plaintiff. Defendant brings error. Reversed.

Galbraith & McCormack (J. F. Hambitzer, of counsel), for appellant.

Burritt & Burritt, for appellee.

OSTRANDER, J. In December, 1915, plaintiff's wife filed her bill for a divorce in the circuit court for the county of Houghton, in chancery, and in June, 1916, a decree of divorce was entered in said cause, which recites that it satisfactorily appeared that the material facts charged in the bill were true. Among the facts charged in the bill are the following: Shortly after marriage, the husband began to drink liquors to excess, and in October, 1910, while the parties were living in Superior, Wis., and from then to July, 1911, he on divers days and times beat, struck, kicked, and choked his wife and neglected to furnish her necessary food and clothing. About November 1, 1910, he came home drunk and assaulted his wife; a police officer interfering in his pastime of beating her. On Christmas Eve, 1910, he came home drunk, and assaulted and beat his wife, knocked her down, kicked her, and threatened to kill her. In the spring of 1911, while she was ill and confined to her bed and under care of a physician, he refused to supply fuel for heat, or any provision or sustenance, and she was dependent upon charitable neighbors for food and necessary attention. He gave her a beating July 4, 1911. He was much of the time a loafer, requiring his wife to work as waitress in hotels and restaurants; he using the money she earned for drink. He habitually used in her presence obscene and profane language, and called her vile names. She left him July 5, 1911, going to the home of her parents, where she thereafter resided, and where she was when she filed her bill for divorce. In her bill she describes herself as Senja Hendrickson. She states therein that there has been

no issue as the result of the marriage, and she gives the date of marriage as October 14, 1909.

Plaintiff filed his declaration in the cause at bar November 6, 1914, alleging marriage to Hilma Hendrickson, "his present wife," February 28, 1908; alleging further that he always enjoyed her respect, love, affection, and society until defendant's wrongdoing, which began about August 1, 1913, and consisted of attention, protestation of respect and affection for his wife, and other arts and wiles, had the effect of destroying and alienating the affection which his wife had for him, depriving him of her society, comfort, and aid. The record advises us that upon a trial of the issue joined in this cause a verdict for $1,500 for plaintiff was returned, and that a judgment was entered on the verdict. The errors assigned by defendant are:

"(1) The court erred in permitting the plaintiff to testify, under objection, that he had heard from other people that they. had seen Hilma Hendrickson with Harry; it being an indirect way of corroborating plaintiff without legal proof.

"(2) The court erred in that, after Ellen Juntinen testified she had never been in the house of ill fame in Hancock and never had pleaded guilty to being a prostitute, the attorney for the defendant, upon crossexamination of said Ellen Juntinen (formerly Ellen Lake), propounded the following question: 'Did Gust Wickstrom ever take you out of Madge Beital's house in South Range? To which the attorney for the plaintiff objected, and his objection having been sustained by the court as being incompetent and improper.

"(3) The court erred in not permitting the defendant to show physical acts of violence committed by the plaintiff, against his wife, Hilma Hendrickson, before the commencement of this suit.

"(4) The court erred in holding that the testimony of Hilma Hendrickson showing her state of mind and affection at the time of the beginning of the acts complained of August 1, 1913."

The fourth assignment is without meaning unless words are supplied; the third and first lack precision, although they may be aided by reference to the exception upon which they are based. No comment is made by counsel upon the difference in the dates set up in the bill for divorce, which was received in evidence, from the dates testified to upon the trial, although it is apparent that, if the dates in the bill are correctly given, the wife had separated from her husband some two years before defendant's alleged misconduct began.

1. Plaintiff was testifying, had been cross-examined, and had admitted that he had called his wife a whore. On redirect examination, he said he called her that because "I see her with Harry." He was asked if he had heard from other people that they had seen her with Harry, and answered, "Yes." Objection was made (the question having been answered) that the testimony was incompetent. His counsel suggested that, as affecting plaintiff's conduct, what he had heard was competent, the court said, "Restrict it to that purpose," no other ruling was made, and defendant excepted. As counsel for both sides left the matter at this point, it may be assumed, I think, that the ruling made amounted to this: The testimony was not competent to prove that any one else had seen plaintiff's wife and Harry together; but, plaintiff having been told that others had seen them together, the fact explained plaintiff's conduct towards his wife. If we assume, also, that the jury understood the matter in this way, the ruling, though of doubtful propriety, cannot be treated as reversible error. In the connection in which it was given, the testimony really amounts to nothing.

2. Plaintiff produced as a witness Mrs. Ellen Juntinen, who gave testimony tending to prove that defendant sought to rent of her rooms to be occupied

by himself and plaintiff's wife two or three nights a week. On cross-examination the witness had said she had been arrested once, with Hendrickson, the case being dismissed, they having been brought to jail Saturday night, where they remained until Monday morning; that she had never pleaded guilty to being a prostitute, but between her first and second marriage she had had a child. She admitted knowing Gust Wickstrom, a night watchman in Hancock. She was asked:

"Q. Did Gust Wickstrom ever take you out in Madge Bietila's house in South Range?"

To this the court sustained an objection, and defendant excepted. In argument it is said:

"The testimony has her in company of Hendrickson on different occasions. There is testimony to the effect that she bore a bad reputation, and she gave some damaging testimony to assist Hendrickson, and therefore we contend that it was competent to show, if we could, that she was taken from a house of ill fame and was a prostitute therein, as bearing upon her credibility and also as bearing upon the relations between her and Hendrickson."

That the purpose of the question was the one stated in argument is not made clear by the question. If the declared purpose had been served by an answer, it is not clear that Hendrickson's relations with this woman affected at all the conduct of Hendrickson's wife. How far cross-examination of this nature shall proceed is to be determined by the trial judge in the exercise of judicial discretion, and it is not made to appear that discretion was in this instance abused. The rule was recently restated in People v. Cutler, 197 Mich. 6.

3. The third assignment of error is made somewhat certain and specific by the exception, from which and the record context it appears that the offer made was