Callan v. Callan

• Decision Date: 02 July 1932
• Citation: 181 N.E. 736,280 Mass. 37
• Parties: CALLAN v. CALLAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 37

181 N.E. 736

CALLAN

v.CALLAN.

Supreme Judicial Court of Massachusetts, Norfolk.

July 2, 1932.

Appeal from Probate Court, Norfolk County; Joseph R. McCoole, Judge.

Libel for divorce by Mary Hemenway Callan against John J. Callan. A decree nisi granting a divorce was entered, and libelee appeals.

Affirmed.

G. Alpert, of Boston, for appellant.

E. F. McClennen, of Boston, for appellee.

FIELD, J.

The libellant on October 20, 1930, filed in the Probate Court a libel for divorce on the ground of cruel and abusive treatment. The libel was amended later by adding a charge of gross and confirmed habits of intoxication caused by the voluntary and excessive use of intoxicating liquor. G. L. c. 208, § 1. A decree nisi granting a divorce on both grounds was entered and the libellee appealed. A report of material facts was made by the judge. The evidence is reported.

On a probate appeal of this nature, as in equity, ‘questions of fact as well as of law are brought before this court, whose duty is to examine the evidence and decide the case according to its judgment, giving due weight to the finding of the trial judge’ (Hersey v. Hersey, 271 Mass. 545, 554, 171 N. E. 815, 819, 70 A. L. R. 518), but where there is oral evidence the credibility of the witnesses and the relative weight of their testimony are for the determination of the trial judge, and his findings based largely on such evidence will not be reversed unless plainly wrong. Drew v. Drew, 250 Mass. 41, 44, 144 N. E. 763;Preston v. Peck (Mass.) 180 N. E. 671.

The libellee contends, in substance, that the judge was plainly wrong in finding him guilty of gross and confirmed habits of intoxication caused by the voluntary and excessive use of intoxicating liquor, and of cruel and abusive treatment of the libellant. In addition to these general contentions he contends specifically that if the libellee ever had gross and confirmed habits of intoxication those habits did not continue until the libel was filed, that the judge was in error in denying certain of the libellee's requests for rulings of law bearing upon intoxication, that the judge improperly considered evidence of intoxication upon the charge of cruel and abusive treatment, and that if the libellee was guilty of cruel and abusive treatment of the libellant it was condoned by the libellant.

The parties were married February 24, 1924. The libellanton October 16, 1930, left the home in which she had been living with the libellee and has not returned.

First. The judge was not plainly wrong in finding the libellee guilty of ‘gross and confirmed habits of intoxication caused by the voluntary use of intoxicating liquors.’ The evidence on this issue was contradictory. The affirmative evidence came largely from the libellant, though in some specific instances of intoxication her testimony was corroborated. The judge, however, could accept her uncorroborated and contradicted testimony as true. Meader v. Meader, 252 Mass. 132, 147 N. E. 578. Nor did her failure to note instances of his intoxication in her diary or to mention them to others, as the libellee contends, necessarily preclude belief in her testimony to his conduct. The voluntary use of intoxicating liquor by the libellee over a period of years is not controverted. There was evidence of, and the judge found, numerous instances, from May 2, 1926, to September 20, 1930, of excessive use of such liquors by the libellee, ranging in degree from those in which he was described as ‘not sober,’ through being ‘somewhat intoxicated’ to being grossly ‘intoxicated.’ We are not called upon to define in terms of frequency and degree of intoxication the boundary between occasional intoxication and ‘gross and confirmed habits of intoxication.’ It has been said that these statutory words ‘probably do not admit of precise definition.’ Blaney v. Blaney, 126 Mass. 205, 206. The line must be drawn by a process of inclusion and exclusion, and its location, to a considerable extent, is a matter of fact. See Dennis v. Dennis, 68 Conn. 186, 192, 36 A. 34,34 L. R. A. 449, 57 Am. St. Rep. 95;Northwestern Mut. Life Ins. Co. v. Muskegon Nat. Bank, 122 U. S. 501, 505, 506, 7 S. Ct. 1221, 30 L. Ed. 1100. It is sufficient to say here that the judge was not plainly wrong in finding on the evidence of the libellee's actual intoxication and the other evidence in the case, and reasonable inferences therefrom, that he had crossed this line. The judge could find that the libellee's voluntary and excessive use of intoxicating liquors resulted in gross and confirmed habits of intoxication.

The libellant was bound to prove that these habits of the libellee continued until the time of the filing of the libel. Hammond v. Hammond, 240 Mass. 182, 184, 132 N. E. 724, and cases cited. There was no evidence that the libellee was intoxicated between September 20, 1930, and October 20, 1930, the date of the libel, and some evidence to the contrary. But it was a reasonable inference from all the evidence that the libellee's habits prior to September 20, 1930, continued during that period. McCraw v. McCraw, 171 Mass. 146, 50 N. E. 526;Gowey v. Gowey, 191 Mass. 72, 73, 77 N. E. 526.

The libellee contends that his requests for rulings bearing upon intoxication numbered 11, 12, and 13, were denied wrongly. We find no error in the denial of these requests. The eleventh request that ‘It is not drunkenness but habitual drunkenness that is made a ground for divorce by the statute,’ was dealt with adequately by stating the ground for divorce in the words of the statute. Moreover the judge ruled in compliance with other requests by the libellee that proof of fixed habits of intoxication was essential. By his twelfth and thirteenth requests the libellee in effect sought definitions of ‘gross and confirmed habits of intoxication,’ as the words are used in the statute. Though these words may be difficult of precise definition they are in common use. The libellee was not...