Nevertheless, the public policy which protects as confidential the private communications or acts between husband and wife does not necessarily extend to those communications and acts which are in furtherance of a fraud, where such proceeding is based upon a civil action. Fraser v. United States, 6 Cir., 145 F.2d 139.
It is my firm belief that the allegations of the complaint together with the inferences to be drawn from them constitute the essential requisites of fraud. Fraud, in its general sense, comprises all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence and resulting in damage to another. Connolly v. Gishwiller, 7 Cir., 162 F.2d 428; Moore V. Crawford, 130 U.S. 122, 9 S. Ct. 447, 32 L. Ed. 878.
I do not intend, however, to premise my ruling upon the inferences which I have gleaned from the pleadings, especially when the allegation of fraud is not directly and categorically presented.
The cloak of immunity surrounding the husband and wife relationship, rooted as it is, in the ground of sound public policy, is not to be cast aside lightly.
The rule, however, has never excluded the testimony of either spouse when such testimony is not directed against each other.
The fact that the husband and wife are co-defendants does not, of itself, render either of them immune from being called as for cross-examination by the plaintiff. The test is whether one testifies against the other. Kerr v. Clements, 148 Pa.Super. 378, 25 A.2d 737; Canole v. Allen, supra.
In the instant case Charles R. Alter alone was president of the bank. He alone entered into the agreement with Westerman for the sale of the stock. The proceeds of the sale went into his own personal bank account. He alone received proceeds of the embezzlements, and, in many other respects, he alone is involved as a defendant. That being the case, there are many matters as to which he can be examined without his being called upon to testify against his wife.
Charles R. Alter's testimony as to the day-to-day operations of the bank would hardly be against his wife as a director, but would more likely affect only himself as such operating head. The plaintiff is certainly entitled to know, in advance of the trial, what books the bank kept, by whom they were kept, the significance of entries therein, the duties of the various employees of the bank, etc., and the obvious source for such information in this case is the operating head of the bank, Charles R. Alter. The plaintiff is likewise entitled to know, in advance of the trial, the circumstances surrounding the transaction by which Charles R. Alter received and deposited to his own personal account $ 246,865 in funds embezzled from the bank of which he was then the operating head, and he is the obvious source to which to look for this information.
The virtual impossibility of determining in advance what portion of Charles R. Alter's testimony on deposition would be against his wife, if any; what portion would support the position taken by his wife; and what portion would pertain to matters which are not even in dispute points to a reasonable solution to the problem now before the Court.
If privileged matter be adduced, objection thereto may be made prior to trial, and the Court shall direct that all such privileged matter be stricken.
Until such time as this Court has expunged any and all privileged matter of either Charles R. Alter or Mary B. Alter from depositions to be taken in this proceeding, special and meticulous precaution will be exercised to prevent such privileged matter from becoming circularized or in any way prejudicing their defense.
It shall be decreed that:
After said depositions have been transcribed, they shall be sealed by the respective officers taking the depositions and they shall be returned to the Clerk of this Court, to be kept under seal until the further order of this court.
The officers taking the depositions shall not furnish copies to any person except, if so requested, to counsel for the Federal Deposit Insurance Corporation, and counsel for defendants.
Any other party in interest desiring a copy of any or all of the depositions shall make application therefor to the Court.
Persons entitled to receive copies of the depositions or who are present when they are taken shall not disclose the contents of the depositions to any persons who are not their agents, attorneys, or members of their respective organizations.
Motion is granted.
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