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Rehling v. Brainard

October 1914

JOSEPH REHLING, RESPONDENT, V. E. A. BRAINARD, APPELLANT.


Appeal from the Second Judicial District Court, Washoe County; John S. Orr, Judge.

Massey & Springmeyer, for Appellant.

Stoddard, Moore & Woodburn, for Respondent.

By the Court, McCarran, J.:

This is an action in damage for criminal conversation between appellant and the wife of respondent. Damage was prayed for in the sum of $10,000. The case was tried in the lower court without a jury. Judgment was rendered in favor of plaintiff in the sum of $2,000. From the judgment and from the order denying a new trial the defendant appeals.

The defense interposed by the pleadings denies the alleged wrongful act, and the damage, and by way of affirmative defense appellant alleged that respondent and his wife, prior to the 19th day of June, 1911, conspired to manufacture evidence against the appellant, and conspired to wrongfully accuse appellant of the acts alleged in the complaint for the purpose of extorting money from him.

There are a number of assignments of error asserted by appellant in the case. We will consider only that assignment most seriously urged, and the only one which, in our judgment, demands serious consideration.

[1] The respondent on redirect examination was fully interrogated by his attorneys relative to the relationship existing between himself and wife subsequent to the 19th day of October, 1911, the date on which he testified to having seen his wife in a compromising position with appellant. His testimony disclosed that some time

[38 Nev. 16, Page 18]

after the 19th day of October he left the state and went to California, and, having identified certain letters received by him from his wife while he was in the State of California, the same were admitted in evidence over the objection of appellant. The admission of these letters in evidence is the principal error relied upon by appellant for reversal in this case. The evidence tended to establish that these letters were written by Annie Rehling, wife of respondent, after the 19th of October, and were received by respondent, according to his testimony, while he was in the State of California. The appellant, Brainard, had no knowledge of the sending and receiving of the letters, nor of their contents. The letter of December 20 contains a complete confession on the part of respondent's wife, and a full statement disclosing the illicit relations existing between Brainard and herself.

The letter of December 10 is, in substance, a request for respondent to return to Reno, and among other things contains these words: “Well, all at once my eyes are open. Now I am ready to talk and if you think of me as you said you did then, and seemed to when you left, I am your friend in every sense of the word as you said you were mine, and want you to come here now and hear what I have to say.”

These letters contained other statements indicating that the respondent had left the home, and that there was at least a temporary separation.

It is the contention of appellant that these letters, purporting to have been written by the wife of respondent without the knowledge or assent of appellant, are objectionable under the rule excluding hearsay testimony, and also under the rule excluding self-serving declaration. There is nothing in the record, in our judgment, that would relieve these letters of their objectionable features in so far as their contained admission and declarations of acts of adultery are concerned. Each of the letters was subject to exclusion under all the rules invoked if they had been admitted for any other purposes than that expressly stated by the court when admitting them.

[38 Nev. 16, Page 19]

In reviewing this particular phase of the case, however, we must take into consideration the circumstances under which the letters were admitted, the purpose for which they were admitted, and the force and effect apparently given to them by the trial judge on arriving at his decision. A review of this phase of the case necessarily ...


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