Miller v. Miller

14 Mo. App. 418, 1883 Mo. App. LEXIS 65

• Court: Missouri Court of Appeals
• Decided: December 4, 1883
• Status: Published

Opinions

Lewis, P. J.,

delivered the opinion of the court.

This is a suit for divorce, upon the ground that the defendant has offered such indignities to the plaintiff as rendered his condition intolerable. The circuit court decreed for the plaintiff.

When the cause was called for trial, the defendant objected to any hearing thereof, because the plaintiff was in arrear to the amount of $15 on an order for alimony pendente lite. An exception was saved to the overruling of the the objection. No authority is shown in support of such an objection, and we can conceive of no reason why it should have been sustained.

The testimony tended to show that the defendant was in the constant habit of assailing the plaintiff with vile and abusive language, applying to him the most revolting epithets, and accusing him of having committed adultery with various women, including his step-daughters and his own sisters. The defendant, as a witness, denied having used the expressions alleged, except as to the general charge of adultery, which she declared was true. The plaintiff, as a witness in his own behalf, was permitted, against the defendant’s objection, to describe his wife’s often repeated abusive language to him, at times when they were alone. This is assigned for error.

In the case of Vogel v. Vogel (13 Mo. App. 588), recently decided by this court, we held, on the authority of Moore v. Moore (51 Mo. 118), and Buck v. Ashbrook, (51 Mo. 539), that private communications between husband and wife can not, in Missouri, be testified to by either. Were the question one of first impression we might,' in interpreting the rule by its history, its reason, and its policy, be inclined to make a distinction in its several applications. The fundamental policy of all well ordered society regards the marriage relation as sacred to the most unreserved confidence between the parties. The intimate union óf their interests, and of the elements of social welfare and happiness which either may enjoy, seem to demand that mutual revelations between man and wife shall be not less free from exterior scrutiny than are one’s secret communings with himself. A man must be able to impart to his wife the most critical conditions of his affairs, or even his guiltiness of crime, in the full assurance that no process of law can compel her to a violation of his confidence. But a fair application of this reasoning seems to stop at the point of actual disclosures made between the parties. A vituperative epithet is not such. It has long been settled in Missouri, that charges of infidelity made by the husband without any just cause, are such personal indignities as.the statute contemplates in defining the grounds for a divorce. Lewis v. Lewis, 5 Mo. 278; Hooper v. Hooper, 19 Mo. 355. If it be the policy of social regulations in this state, that the making of such charges may properly eventuate in the dissolution of the marriage tie, the question may be asked, how can that policy be sustained by a rule which, in many cases, closes the mouth of the only person who can testify to the injurious fact, and for whose especial protection the law was made? There is no statutory exclusion of the testimony under consideration. The decision in Moore v. Moore (51 Mo. 118), is announced as an interpretation of the common-law rule ; a former statute on the subject having been repealed. In Massachusetts, however, there appears to be a different understanding of the rule. A statute prohibited any married person from testifying to “private conversations ” between the married parties. In French v. French (14 Gray, 186), the court said : “This exclusion of testimony is, however, to be strictly confined to mere conversation between the parties, and not to be extended so far as to exclude evidence of everything said by one of the parties in the absence of other persons. Mere abusive language addressed by one party to the other, when they were uotin conversation, might be the subject of testimony by the party to whom it was addressed, and would he competent evidence.”

But whatever might be our views as to these several propositions, the last ruling of our supreme court, on any question, is the law for us. The language employed in Moore v. Moore (supra), might possibly be regarded as a dictum expressing only a generality not pertinent to the real question before the court. But in the later case of Buck v. Ashbrook (51 Mo. 539), it is distinctly declared that the trial court committed no error in excluding so much of the testimony of a married woman, as stated that she had protested to her husband against his use of her name or property in business. It is here again intimated that the propriety of such an exclusion results from “the common law still in force as to her inadmissibility, respecting conversations with her husband,” etc. The case of Moore v. Moore is referred to in the same opinion. We have, in these two cases, an unmistakable expression of what our supreme court understands to be the meaning of the common-law rule. This is, that no private conversations or communications, of whatsoever nature, between husband and wife, can be testified to by either of the parties, as a witness. The mere protest of a wife against her husband’s conduct, on the one hand, and vituperative language, on the other, are equally removed, if either be so, from the category of confidential disclosures. We must, therefore, adhere to our ruling in Vogel v. Vogel (13 Mo. App. 588), that while both parties may testify in a divorce suit, neither should be permitted to relate private utterances of any description which have been addressed by the one to the other.

But it does not always follow that a judgment must be reversed, when incompetent testimony has been admitted in the trial. If there be other evidence which was competent and ample to bring about the finding of fact, there are few cases in which it would not be a gross injustice to disturb the result. Bradford v. Pearson, 12 Mo. 71; Ridgway v. Kennedy, 52 Mo. 24; Blackwell v. Baily, 1 Mo. App. 328. In Vogel v. Vogel, every accusation, or vituperative expression used by the defendant, which could have been construed as a personal indignity within the statute, was uttered by the plaintiif alone, and appeared not to have been heard by any other witness. Quarrels had occurred in the presence of third persons, but the charges of infidelity and other offences were omitted on those occasions. The proofs in the present case were very different in this important particular. Gross charges of infidelity, made openly by the wife against her husband, were detailed by a number of witnesses, besides the plaintiff. In fact, the defendant, both in her answer aud in her testimony, admitted the making of those charges, and averred that they were true. Her case could not have been unfairly prejudiced by the plaintiff’s testimony to the same effect. Blachwell v. Baily, 1 Mo. App. 328. The only issue made in this connection was as to the truth of the charges. On this point the only incompetent testimony introduced was that of the defendant, who swore that the plaintiff had confessed to her his uuchastity.

Much of the argument here presented for a reversal is directed to a discrediting of the plaintiff’s testimony, an impeaching of his conduct in various particulars, as viewed from the defendant’s standpoint, and a general contention against the finding of the court, as being contrary to the weight of evidence. We can not find, in any of these matters, the least reason for disturbing the judgment. Whether the plaintiff’s statements were or were not worthy of credence, is a question which was fairly before the trial court, and nothing is shown to cast a shadow on the court’s determination of it, unless we are to take the defendant’s statements as absolutely true wherever she contradicts the plaintiff. In nearly every instance, where these contradictions occur, the plaintiff is corroborated by other witnesses ; while the witnesses who, from their personal connection with the facts, should be able to corroborate the defendant, flatly contradict her. Her manner of testifying was anything but encouraging to a ready faith in her accuracy of statement. General charges against the plaintiff fell glibly from her lips, but when reduced, by cross-examination, to specific details, proved little more than the overwrought suspicions of an imaginative and jealous woman. We may dismiss this branch of the inquiry with the remark that, without admitting that this is a proper case for an appellate revision of the weight of evidence on either side, we think there was no rational escape from the conclusion reached by the trial court, upon the facts, as presented.

It is objected that witnesses were erroneously permitted to testify favorably of the plaintiff’s general character and reputation. The most prominent feature of the defence was a direct attack upon the plaintiff’s moral habits, and his title to social respect. He had a right to meet this with proofs of a good general reputation, as to the vices implied in the charge. O’Bryan v. O'Bryan, 13 Mo. 16. Some of the witnesses spoke of his general character in other respects. This testimony was irrelevant, and might well have been excluded. But its admission constitutes no ground for a reversal.

The defendant offered to prove that, during the pend-ency of one or more former suits, which were dismissed, the plaintiff had attempted, by the use of money, to obtain the defendant’s consent to a collusive divorce. The testimony was properly excluded. It had no relevancy to any issue in the present case.

The defendant moved for a new trial, with an affidavit alleging that she was surprised, on the trial, by the imputations upon her character for truthfulness; that she had ever borne a spotless reputation outside the circle of her husband’s depraved associates, and had no reason to fear such an attack. The affidavit covers nearly ten pages of the record with an account of domestic infelicities and grievances borne by the defendant, which might have been very properly introduced at the trial, but which are wholly out of place where they appear. The affiant says that she will be able to prove all the facts stated, if a new trial be granted, but gives no reason for her failure to prove them in the trial, except that her counsel at the time thought it unnecessary. The application for a new trial is lacking in the first essentials of such a proceeding, upon the grounds stated. The defendant had no right to claim a surprise in the testimony impeaching her reputation for veracity. The issue was invited by herself when she went upon the stand and contradicted the sworn statements of the plaintiff and other witnesses. It is to be presumed that she intended all this beforehand ; since it is not to be supposed that her facts were invented for the occasion, and on the spur of the moment. Having determined on this line of defence, she was bound to anticipate the plaintiff’s employment of the methods in common use for its defeat. But, aside from this, her claim of a surprise is thoroughly destroyed by allegations in her affidavit to the effect that she desired, during the trial, to have subpoenas issued for certain witnesses who would vindicate her character for truthfulness, but her counsel refused to have them issued. Also, that there were witnesses present in court who would have done the same, but her counsel refused to call them. She must abide by the acts and omissions of her counsel. It is manifest that the defendant was not prevented from offering the desired testimony, without fault on her part, and after the exercise of all reasonable diligence in an effort to produce it.

An argument is presented, that the plaintiff was not an injured party, and therefore not entitled to a divorce because, in a former suit against the defendant, which was dismissed, he had falsely charged her with adultery, and this fact was shown in evidence in the present case. The defendant’s answer sets up no such charge. An affirmative defence must be pleaded in a divorce suit, as well as in any other. The only use which the defendant could have made of the fact stated, would have been in a charge in the nature of a cross-bill, of such indignities offered by the plaintiff to the defendant, as to render her condition intolerable. The answer contains only denials, with an inferential charge of adultery, committed by the plaintiff. As the pleadings stand, there is no necessary inference that the plaintiff’s charge in the former suit had any injurious effect upon the defendant’s condition. It may well be, that bad conduct on the part of a plaintiff, not alleged in the pleadings, but ¡proved on the trial, may be of such a character as to show that the plaintiff is not an injured party, and therefore not entitled to a divorce. But this is not the case here. The.plaintiff’s conduct— consisting of nothing more than an allegation in a petition, inserted by his lawyer, and of which he says he was ignorant at the time — may have had no effect on the sensibilities of the defendant, and so have been utterly harmless as to her. As she does, not choose to plead that it was otherwise, we can not judicially put the words in her mouth' and determine that it was so.

Upon a careful examination of the record, we find in it no error of which the defendant can justly complain. We see nothing that is entitled to serious consideration, in the point made upon the conduct of the plaintiff’s attorney. The letter written by him to the prosecuting attorney, signed with the name of the firm of which he was a member, and asking him to look into a matter-of official duty for Mrs. Miller, had no tendency to prove that the writer was her attorney in the present defence, or that he had consulted with her about it. N o facts are shown which were not perfectly consistent with good faith in the attorney’s representation of the plaintiff in the present proceeding. The judgment is affirmed.

All the judges concur.