Freeman v. Freeman

130 N.E. 220, 238 Mass. 150, 1921 Mass. LEXIS 953

• Court: Massachusetts Supreme Judicial Court
• Decided: March 9, 1921
• Status: Published

Opinion

Braley, J.

The exceptions recite that the parties were married on January 14,1903, and thereafter lived together in this Commonwealth until July 31, 1919, when “the libellant left the libellee for good,” and on August 23,1919, brought a libel for divorce charging her husband with cruel and abusive treatment, and asking for the care and custody of the four surviving minor children born of the marriage. A decree nisi having been ordered with custody of the children, the case is before us on exceptions of the libellee to the refusal of the judge to" rule that the evidence did not warrant a decree or a finding that the libellant had been subjected to cruel and abusive treatment as alleged in the libel and specifications, and that upon the undisputed evidence her own conduct had been such as to prevent her from obtaining a divorce, and to the admission and exclusion of evidence.

The sufficiency of ,the proof is immaterial. If there was any evidence which as matter of law warranted a decree, the rulings requested could not have been given, and the exceptions to the findings cannot be sustained.

The statute among other causes provides that a divorce may be decreed for cruel and abusive treatment. R. L. c. 152, § 1. It was held in Bailey v. Bailey, 97 Mass. 373, where the libel alleged that the libellee had “treated the libellant with extreme cruelty, and bruised and beat the person of the libellant in such a manner as to endanger her life, and threatened to take her life,” that cruelty as a ground for divorce must be of such a character “as shall cause injury to life, limb or health, or create a danger of such injury or a reasonable apprehension of such danger upon the parties continuing to live together. This is broad enough to include mere words, if they create a reasonable apprehension of personal violence, or tend to wound the feelings to such a degree as to affect the health of the party, or create a reasonable apprehension that it may be affected.” See Ford v. Ford, 104 Mass. 198; Freeborn v. Freeborn, 168 Mass. 50, 52. The distinction between cruel and abusive treatment and extreme cruelty, also a ground for divorce under Gen. Sts. c. 107, § 9, Pub. Sts. c. 146, § 1, but omitted from R. L. c. 152, § 1, is pointed out in Lyster v. Lyster, 111 Mass. 327, 328, 329, Jefferson v. Jefferson, 168 Mass. 456, Osborn v. Osborn, 174 Mass. 399, 400.

The judge’s findings on which he granted a divorce having been confined to the acts and conduct of the libellee during the period from January 1 to July 31, 1919, it is unnecessary to consider specifically prior allegations of his marital wrongdoing, or to dwell on his admissions of being often angered and slapping her, or on evidence which, if believed, showed that he had struck her many times, once with clinched fist, and once by a blow so violent as to cause her nose to bleed, and that, after knocking her down in the dining room, he dragged her into the living room and threw her against a bookcase. The testimony of the libellant, corroborated by the evidence of her sister and of her own daughters, was sufficient to show that the libellee, when she was suffering from ill health, frequently had assaulted her and during some of the assaults had indulged in foul, abusive and profane language. It also could be found that on July 31, 1919, in the presence of her daughters and of her sister and brother-in-law, he assaulted and accused her of being an immoral, diseased woman and a liar, causing her to suffer in health, and confining her in bed during the following day. The evidence in the record without further recitals justified the judge in finding that the libellee was guilty of cruel and abusive treatment to the extent of inflicting injuries upon her person by violence, which never have been condoned. The rulings requested on this issue in so far as not given were rightly refuséd. Lyster v. Lyster, 111 Mass. 327. Bailey v. Bailey, supra. Freeborn v. Freeborn, 168 Mass. 50, 52. Jefferson v. Jefferson, 168 Mass. 456, 460. Osborn v. Osborn, 174 Mass. 399. And the general finding that the libellee “inflicted upon the libellant cruel and abusive treatment within the meaning of R. L. c. 152, § 1,” and the order for a decree “on the ground of cruel and abusive treatment as found by me,” having been warranted, is conclusive. Dickinson v. Dickinson, 167 Mass. 474.

The defences, pleaded in the answer, of adultery, and of justification and excuse arising from alleged misconduct of the libellant, more fully appearing in the specifications, depended upon the evidence, and the judge having expressly found that the libellant had always been faithful to her marital vows and obligations, he correctly declined to rule, that her own conduct furnished any justification for the libellee’s acts, or barred a divorce. Lyster v. Lyster, 111 Mass. 327. Pollock v. Pollock, 71 N. Y. 137. See Cushman v. Cushman, 194 Mass. 38; Newman v. Newman, 211 Mass. 508. The general finding, moreover, for the libellant is a finding that in so far as the defence depended upon issues of fact, the libellee had failed in his contentions. Boston Supply Co. v. Rubin, 214 Mass. 217, 220.

We perceive no reversible error in the rulings relating to evidence. The libellant was properly permitted to testify in her direct and redirect examination that she refrained from engaging in certain social affairs, and from associating with certain persons or with neighbors in consequence of conversations with her husband. Sampson v. Sampson, 223 Mass. 451, 458. And it is unnecessary to decide whether, in his attempt to show misconduct, the libellee, having substantially introduced through her cross-examination every instance of his remonstrances, has shown that he has been prejudiced. See Morrison v. Lawrence, 186 Mass. 456, 458.

The admission of a conversation between the spouses in the presence of the daughters, the eldest being nine years old, shows no ground of exception. It was for the judge to determine whether she was of sufficient intelligence at the time to pay attention, and to understand what was being said. Lyon v. Prouty, 154 Mass. 488, 490. Commonwealth v. Teregno, 234 Mass. 56. The conversation between them in a public street was properly excluded. It did not appear that any of the passers-by or persons in their vicinity paid any attention to them, or even could hear the words.

The judge is not shown to have exceeded his discretionary power in the admission of the dentist’s card, or in the questions admitted and evidence introduced in the libellee’s cross-examination. His credibility as a witness, as well as disposition and honest belief in the accusations against his wife could be fully tested and explored. “In cross-examination, an adverse party is usually allowed great latitude of inquiry, limited only by the sound discretion of the court, with a view to test the memory, the purity of principle, the skill, accuracy, and judgment of the witness; the consistency of his answers with each other, and with his present testimony; his life and habits . . . .” Hathaway v. Crocker, 7 Met. 262, 266. A witness and an adverse party, “may always be subjected to a strict cross-examination, as a test of his accuracy, his understanding, his integrity, his biases, and his means of judging.” Perkins v. Adams, 5 Met. 44, 48. And - the cross-examination need not be restricted to the inquiries made in chief. Commonwealth v. Smith, 163 Mass. 411, 431. The rule is again fully stated in Jennings v. Rooney, 183 Mass. 577, 579, where the cases are collected. The libellee having charged his wife with adultery, and further averred in his answer that his actions toward her, and statements and accusations whether oral or in writing concerning her character and marital conduct, were all supported by facts or information in his possession, and having offered evi-. dence which he claimed tended to sustain all of them, the libellant was rightly allowed to elicit from him in cross-examination evidence tending to show he was not acting in good faith, and knew from the prolonged investigation of detectives employed to shadow his wife, that no improper relations existed between her and other men, and not only was the charge of adultery or even of an adulterous disposition groundless, but he knew they were groundless. '

The conversation of the libellee with a physician employed by him as medical adviser to the libellant, but who died before the trial, and with whom he claimed she committed adultery, having been admitted solely as “information which came to the knowledge of the libellee” when seeking to ascertain her alleged unchastity, he contends, it should have been admitted without such limitation. The ruling was sufficiently favorable to the libellee. Commonwealth v. Trefethen, 157 Mass. 180.

The letter of his former counsel containing suggestions that if he could persuade his eldest daughter to "shift and stick by” him instead of her mother, it would “be a very desirable thing indeed,” and other letters written by, and to him, relating to his own temperament and disposition, and to his recommendation of the physician for a responsible public employment, were admissible. Thayer v. Thayer, 101 Mass. 111, 113. Commonwealth v. Abbott, 130 Mass. 472, 474. Smith v. Smith, 167 Mass. 87. Bennett v. Susser, 191 Mass. 329. Commonwealth v. Howard, 205 Mass. 128, 148.

The evidence showing the date of registration of the physician’s automobile was admissible in the discretion of the judge. It tended to prove he was in this Commonwealth at that time, instead of being in another State where he was said by the libellee to have been in communication with the libellant. Commonwealth v. Williams, 105 Mass. 62, 68, 69, and cases there cited. Commonwealth v. Choate, 105 Mass. 451, 459.

The libellant having admitted on cross-examination, that on several occasions with intent to deceive, she had made untrue statements to her husband, was further asked, whether "a woman who deceives her husband will hesitate to deceive a judge,” and “which do you think the more reprehensible — to deceive your husband or to deceive the court?” But the admission of these questions as well as the questions asked in cross-examination by libellee’s counsel of the daughters concerning the handwriting in a certain letter, and whether he should be permitted in his cross-examination of the libellant’s sister to use a letter marked for examination but not as yet introduced in evidence, were matters within the discretion of the judge, and his refusal to allow the questions, or the letter to be used, affords no ground of exception. Jennings v. Rooney, supra. Smith v. Smith, supra. Koplan v. Boston Gas Light Co. 177 Mass. 15, 25.

The libellant also was properly allowed to explain that by the words "the little rough places” in a letter to her husband she meant, when he was abusive in language, as well as when “he was abusive by force, physical force.”

The judge well might have excluded the cash books kept by her showing household expenditures for many years, as having little, if any, probative value on the issues between the parties. But, it being plain that the libellee could not have been prejudiced, this exception should not he sustained. Koplan v. Boston Gas Light Co. 177 Mass. 15, 23.

Exceptions overruled.