Breedlove v. Breedlove

• Decision Date: 12 November 1901
• Docket Number: 4,016
• Citation: 61 N.E. 797,27 Ind.App. 560
• Parties: BREEDLOVE v. BREEDLOVE
• Court: Indiana Appellate Court

61 N.E. 797

27 Ind.App. 560

BREEDLOVE v. BREEDLOVE

No. 4,016

Court of Appeals of Indiana

November 12, 1901

From Hendricks Circuit Court; T. J. Cofer, Judge.

Action by Mayme Breedlove against David C. Breedlove for divorce. From a judgment for plaintiff, defendant appeals.

Judgment modified and affirmed.

F. E Gavin, T. P. Davis, J. L. Gavin, R. W. Harrison, Noah Loughrun and C. N. Beamer, for appellant.

E. G Hogate, J. L. Clark and S. M. Ralston, for appellee.

OPINION

ROBY, J.

Appellee had judgment in the Hendricks Circuit Court for a divorce, $ 3,500 alimony, and the absolute custody of the infant daughter of the parties.

The first point made is that "the evidence is not in the record". By legislative assistance the difficulties of the subject have happily been minimized. A volume of 800 pages of typewritten manuscript bearing indications of being a longhand report of the evidence taken in this case comes to this court. It contains the formal parts of a bill of exceptions. It is shown to have been presented to and signed by the judge within the time limited and to have been thereafter filed in the clerk's office. It is incorporated in the transcript and certified by the clerk as the original bill; it is therefore before the court. Hauger v. Benua, 153 Ind. 642, 53 N.E. 942; Tombaugh v. Grogg, 156 Ind. 355, 59 N.E. 1060.

The complaint avers that the parties were married December 5, 1895, and lived together until February 6, 1899. That they have one child, then eighteen months old. It further charges appellant with cruel and inhuman treatment continuing over their entire married life, setting out a number of specific instances, which need not be repeated. Upon the trial evidence was given by appellee supporting her complaint. Appellant denied every charge made against him. It is not claimed that the judgment is not supported by evidence, but it is earnestly argued that the evidence shows without conflict that the cruelty complained of was condoned. The issue was made by a general denial to the complaint. Appellee meets the proposition by the further one that condonement is a special defense and must be specially pleaded. This is the holding of Lewis v. Lewis, 9 Ind. 105, and must be taken as expressive of the law. The case is approved in Sullivan v. Sullivan, 34 Ind. 368, 370, and, upon principle, no reason is known why the husband, guilty of adultery or cruel and inhuman treatment, who seeks to shelter himself behind the forgiveness of his wife, should not plead his defense; nor does the reason apply with less force when the wife is the guilty party. In the Sullivan case the plaintiff set up condonation in his complaint, and averred a breach of the condition. It was held that the defendant was entitled to the benefit of the defense without further plea.

Appellant insists that the averments of the complaint bring him within the exception. They are not so construed. They show the continued course of ill treatment, and, of necessity, forbearance upon the wife's part during the time, but condonation is not averred. The State is the third party to every divorce suit, and is represented by the judge. He is of course not bound by the pleadings, but may examine witnesses as to recrimination, collusion, or condonation, and dispose of the case as the interest of the State requires. 9 Am. & Eng. Ency. of Law (2nd ed.), 729, and authorities cited. In view of the earnestness of the counsel and the importance of the case to the parties, the evidence has been carefully examined, and, under proper pleadings, we should be compelled to hold that it is not sufficient to establish the defense. It is not to the advantage of either party, or any other person, that it be reviewed.

Appellant filed at the proper time his motion for a new trial, setting out 101 reasons, exclusive of subdivisions thereof. The motion was overruled, and such ruling is assigned as error.

The action of the court in permitting appellee to testify that one night when ill she got out of bed and crawled across the sitting-room to the porch, procured a drink of water, returned to the bed the same way, became "worse", could hardly get her breath, "finally waked him up", and was thereafter alarmingly ill, two doctors being called to attend her, is the first reason for a new trial discussed. One of the charges of cruelty was based upon appellant's alleged indifference to and abuse of appellee when in poor health. The incident narrated has some tendency to support the charge, since wives ordinarily would have requested the husband to procure the water. It also tended to show appellee's physical condition, it being in evidence that appellant shortly prior thereto had with unnecessary emphasis told her that "all that was the matter with me was that I lacked the grit his mother had."

The next seven reasons for a new trial discussed relate to the sustaining of objections to questions asked appellee on cross-examination. The first of these questions was: "Dave had provided for you tolerable liberally." Further inquiries were directed to the kind and amount of furniture and carpets, etc., purchased after the parties were married. The complaint did not aver failure to provide. The charge was made that appellant refused during his wife's pregnancy to buy for her certain delicacies she then craved. The questions excluded are not directed to the specific fact previously testified to by the witness, and while the court might without error have permitted them to be answered there was no abuse of discretion in excluding them. Appellee was further asked upon cross-examination a number of questions as to whether her dissatisfaction was not due to property conveyances made after the marriage, by her husband's parents, and as to expressions made by her father and mother to her relative to such conveyances. The latter class of questions were irrelevant; those seeking to develop dissatisfaction with the conveyances should have been allowed, directed as they were to relations existing between the parties; their exclusion does not constitute reversible error, for the reason that, assuming the truth to be as indicated, it does not follow but that the other grounds of disagreement alleged also existed. The statements attributed to the witness by the questions do not contradict the facts otherwise detailed by her.

Appellee was asked upon cross-examination relative to her husband having taken her on a pleasure trip to Atlantic City and Washington. The manifest purpose was to show kind treatment by him. On reexamination she was permitted to give incidents in connection with the trip not to appellant's credit, and while these incidents were not set out in the complaint, appellant having gone into the subject had no right to stop with a part of it, only, before the court.

The forty-first reason for a new trial is based upon the exclusion of evidence offered by appellant during the examination of I. W. Brindel. The record relating thereto is as follows: "Q. State whether or not you are acquainted with the general reputation of Mr. Breedlove, in the community where he lives, for morality. Counsel for plaintiff object for the reason the evidence sought by the question does not prove or tend to prove or disprove any issue tendered by the pleadings in this case. Objection sustained. To which ruling of the court the defendant at the time then and there excepted. Counsel for defendant offers to prove in answer to the question that the witness is acquainted with the general reputation of the defendant for morality in the neighborhood in which he lives." Appellant insists that the question is not presented in this record, for the reason that the offer to prove came too late. The point involved is one of universal interest to litigants and lawyers in the State.

The rule relative to the making of such offers was laid down by the Supreme Court in an apparently well considered case as follows: "If the evidence which the appellants desired to introduce rested in parol, then the witness from whom the proof was to come should have been placed upon the stand, and a question propounded, and if objected to, and the objection sustained, then an offer should have been made as to what the witness would state in answer to the question. This would have properly presented the question in the record." Smith v. Gorham, 119 Ind. 436, 439, 21 N.E. 1096. This case has not been overruled. It is adopted by the distinguished author of a standard work on procedure as expressive of the law, and cited as in apparent harmony with the other cases then decided. Elliott's App. Proc. § 743. The Supreme Court have also decided that the offer to prove must precede the ruling. Gunder v. Tibbits, 153 Ind. 591, 55 N.E. 762. The cases are upon their face conflicting, in which event this court is at liberty to follow the one supported by the better reason. When their reason is considered, however, it is apparent the intention of the court is consistent at all times.

It may be premised that the reason it is essential to show in the record what answer the witness will make is that the court to which the appeal is taken may be enabled to determine whether the party offering it was injured by its exclusion. Robinson Machine Works v. Chandler, 56 Ind 575, 582; Lewis v. Lewis, 30 Ind. 257, 258; Toledo, etc., R. Co. v. Goddard, 25 Ind. 185, 191; Jordan v. D'Heur, 71 Ind. 199, 207. So far as this court is concerned, it can not be material as to what portion of the record the offer appears in. It might be shown by a separate bill of exceptions. The force of the tendered evidence depends upon what it is, and not the time of its presentation. It is not, therefore, necessary for the protection of the appellate tribunal that the offer be...