Carter v. Carter

• Decision Date: 29 June 1921
• Docket Number: 67.
• Citation: 114 A. 902,139 Md. 265
• Parties: CARTER v. CARTER.
• Court: Maryland Court of Appeals

114 A. 902

139 Md. 265

CARTER v. CARTER.

No. 67.

Court of Appeals of Maryland

June 29, 1921

Appeal from Circuit Court of Baltimore City; Chas. W. Heuisler Judge.

"To be officially reported."

Action by Henry L. Carter against Frances Carter for divorce. Decree for defendant, and plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PATTISON, URNER, ADKINS, and OFFUTT, JJ.

James Fluegel, of Baltimore (W. Melbourne Hart, of Baltimore, on the brief), for appellant.

Harry B. Wolf, Edwin T. Dickerson, and Eugene Frederick, all of Baltimore, for appellee.

OFFUTT J.

This is an appeal from a decree of the circuit court of Baltimore City dismissing the appellant's original and amended bill of complaint, which he filed in that court for the purpose of procuring a divorce from the appellee, his wife, on the ground of adultery.

The record in the case is poorly prepared, for, while it displays in unpleasant detail all the testimony, it does not contain either the docket entries or the original pleadings; hence it does not appear from it when the original bill was filed, nor does it disclose any testimony or other proceedings in reference thereto. The learned court below had jurisdiction of the subject-matter and of the persons in the cause, and its action in regard to it will, in the absence of anything in the record to the contrary, be assumed in this court to be correct. Since, therefore, the record before us only shows that the court dismissed the original bill, but fails to show the evidence before it at the time it took that action, we cannot assume that in so doing it committed error, and it becomes unnecessary to notice that part of the decree further.

The testimony before us was taken under the issues made by the amended bill of complaint, and related mainly to matters happening after the filing of the original bill, apparently on the theory that the filing of the amended bill, and not the filing of the original bill, marked the actual beginning of the suit. The record does not show when the original bill was filed, but it does show it was filed before April 8 1920, since on that day a petition was filed showing that adulteries were committed after the filing of the original bill, and, as the only evidence of any adulteries was directed to alleged occurrences happening about eight years before the trial and in the autumn of 1919 and the winter of 1920, it may be assumed that the original bill was filed earlier than the autumn of 1919.

The amended bill of complaint charged that the defendant "had committed adultery with divers men" whose names were unknown to the complainant. At the conclusion of the testimony offered by the complainant to support this charge, the defendant, as the first witness in her behalf was sworn. At the conclusion of her examination, before she had called any other witnesses, the court informed the appellant's attorney that, if he so desired, he could offer rebuttal testimony, and, replying to an inquiry from him as to whether the appellee had closed her case, the court said, "I am closing it for them," and, after hearing the rebuttal, on the same day it signed the decree from which this appeal is taken.

This action of the court was in our opinion justified upon either of two grounds: One that the only testimony tending to prove adultery related to alleged acts which are said to have occurred after the filing of the original bill, and which were not, because of that fact, sufficient to warrant the court in granting the relief prayed; and the other is that the testimony offered was insufficient to meet the burden assumed by the complainant.

It could serve no useful purpose to burden this opinion with any extended analysis of the obscene, indecent and inherently improbable testimony offered by the complainant, nor to comment at length upon the character of the witnesses who testified in support of the appellant's case.

The plaintiff assumed the burden of proving by a fair preponderance of the evidence the facts upon which his right to relief rested. "Preponderance," used in connection with the weight of evidence, refers to something more than the number of witnesses who furnish it. It relates not only to the number of witnesses who testify to a fact or facts in issue, but to the character of the witnesses, and to the intrinsic characteristics of the evidence itself and the probabilities of its truth when tested by the ordinary experience of average people in their daily affairs. Courts should not disassociate testimony from the witnesses who give it, because, if the witnesses are unworthy of confidence, their testimony naturally has little value.

These principles are very clearly stated in 5 Jones on Evidence, § 900, pp. 405, 406, where the author says:

"It is axiomatic that the credibility of testimony depends not so much upon the number of witnesses as upon their characters, their connection with the parties, their means of knowledge of the specific facts testified to, their manner of testifying, and other circumstances of which the jury are the proper judges. *** The maxim of the law is, "Ponderantur testes, non numerantur"-Witnesses are not to be counted, but their testimony is to be weighed. On this view, it is proper to instruct the jury that they are not necessarily to be controlled by the mere numerical preponderance of the witnesses on one side or the other, but that they should consider such preponderance only along with all the other facts and circumstances conducing to credence, or the reverse, in the testimony of the witnesses on either hand."

The defendant's husband, who was a street car conductor, had, for some reason not apparent from the record, left her before the original bill was filed. After that she kept boarders and furnished meals in a six-room house on Druid Hill avenue in Baltimore. Among her patrons were Allyn Ragan, who had known the appellant for seven years, Lloyd Zimmerman, who was at that time also a street car conductor, who had known him for a short time, and Eugene Goodrich, who was also a street car conductor and had known the appellant for about seven years. These three witnesses and Nellie Carter, a niece of the appellant, were relied upon to support the charges of adultery made against the appellee.

The testimony of these three men all related to matters occurring in the autumn of 1919 and in 1920 and therefore subsequent to the filing of the original bill of complaint. Ragan, at the time his testimony was taken, was in North Corolina, and his testimony was in the form of a deposition. He went to Mrs Carter's to board on November 16, 1919, and stayed there two weeks. The gist of his testimony was that on one occasion Mrs. Carter was sitting on a lounge in the dining room in his presence, and a man named Thornton, who took his meals there, came in, sat down beside her, and put his arms around her, and that she put her arms around him and said, "This is my man," and that on another occasion he saw her come with the same man from her...