The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 31
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NEW YORK LIFE INS, CO. V. MASON 31
(272 F )
There were other similar statements detailed by the witness. The
ruling of the court in admitting that testimony over the said objections
advanced thereto is assigned as error.
(2] The statute of Montana, section 7892, has not been construed
by any decision of the Supreme Court of that state The defendant
directs attention to the fact that the statute differs from that of sever-
al of the states :n that the inhibition is not limited expressly to confi-
dential communications, but extends to all communications between
husband and wife That difference, however, is not believed to be
material. In 4 Wigmore on Evidence, p. 3263, it is said:
"In many jurisdictions this fundamental element of confidence is not ex-
pressly named in the statutory enactment: it privileges 'anilly communication.'
Some courts, however, have consti ned this phrase in the spirit of the correct
principle, and have imnplhed a hlnitalton to confidential communications.
Others have literally applied the words of the statute, w;hli is thus allowed
to create an intolerable anomaly in the law of privileged coniuucations
No justification for such an extension of the privilege has ever been attempted.
and it must be supposed that this broad statutory phrasing originated in inad-
vertence. It is proper enough to maintain (as already noticed) that all
marital communications should be presumed to be confidential until the con-
trary appears; but if the contrary appears, there is no reason for recognizing
In 40 Cyc. 2354, it is said:
"The rule under discussion excludes only testimony as to confidential
matters, and leaves the witness competent to testify as to any matters as
to which his or her knowledge is not acquired through the confidence of
the marital relation, and the disclosure of which by the witness in-
volves no breach of marital confidence, although such matters relate to the
transactions of his or her spouse."
We have examined a large number of cases in which the reasonable
and just doctrine so expressed has been applied to statutes identical
with that of Montana, and we find that the weight of authority sus-
tains that view of the meaning of such a statute. In Sexton v. Sex-
ton, 129 Iowa, 487, 105 N. W. 314, 2 L. R. A. (N. S.) 708, construing
a similar statute, the court said:
"There can be no reason arising out of public policy, or otherwise, requiring
that every word spoken between husband and wife shall lie privileged, Ir-
Sespective of the presence in which spoken or the subject or occasion thereof
And, within our observation, no court has ever gone so far as to so hold. The
spirit of the rule as enforced at common law, and, within our understanding,
the meaning to be gathered from the statute, is that the privilege hllall be
construed to embrace only the knowledge which the husband or wife obtains
from the other, which, but for the marriage relation and the confidence grow-
ing out of it, would not have been communicated. or which is of such nature
or character as that, to repeat the same, would tend to unduly embarrass or
disturb the parties in their marital relations. It is the marital communication,
then, that is sought to be protected, and this is so because there can be no
purpose of public policy to interfere, except to guard and foster the marital
Other cases in point are Sackman v. Thomas, 24 Wash. 660, 64 Pac.
819; Van Alstine's Estate, 26 Utah, 193, 72 Pac. 942; Graves v.
Graves, 70 Ark. 541, 69 S. W. 544; State v. Snyder, 84 Wash. 485,
147 Pac. 38; Ward v. Oliver, 129 Mich. 300, 88 N. W. 631; State
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The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38843/m1/53/: accessed September 24, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.