Chavigny v. Hava

• Decision Date: 14 February 1910
• Docket Number: 17,768
• Citation: 125 La. 710,51 So. 696
• Court: Louisiana Supreme Court
• Parties: CHAVIGNY v. HAVA

51 So. 696

125 La. 710

CHAVIGNY v. HAVA

No. 17,768

Supreme Court of Louisiana

February 14, 1910

Appeal from Civil District Court, Parish of Orleans; Fred. D. King Judge.

Action by Mrs. Ernestine Chavigny against Dr. Adrian Hava. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Frank T. Echezabal and Dinkelspiel, Hart & Davey, for appellant.

E. M Stafford and H. W. Robinson, for appellee.

OPINION

BREAUX C. J.

The plaintiff brought this suit for a judgment of separation from bed and board.

Her grounds are ill and cruel treatment, constant humiliation and that on a day stated her husband "took hold of her by the back of her hair and then struck her."

The defendant denied the charges of the wife against him.

Six children are issue of the marriage.

The eldest aged 18 years, and the youngest 8 years.

Trial was had, and judgment of separation a mensa et thoro rendered in favor of plaintiff, and gave plaintiff the permanent care of the children.

Plaintiff had obtained an injunction; it was made perpetual, and the court ordered the community property to be divided.

From this judgment, defendant appeals.

During the trial in the district court, questions arose about the admissibility of testimony.

The defendant offered to prove by Mrs. Joseph Alvarex, who lived next door to plaintiff, that the eldest daughter of defendant, who had testified against him during the trial, had testified entirely from statements made to her by her mother, and that her mother and she had repeatedly rehearsed her testimony.

More specifically the charge was that mother and daughter had colluded together in order that the latter (the daughter) would testify falsely against her father.

Thus, for discrediting the witness.

The court declined to permit the witness to testify; held that, in his opinion, no mother or father should do anything of the kind.

To this ruling, the defendant's counsel objected and took a bill of exception.

While such evidence should be closely observed and vigilantly weighed, it was none the less admissible.

The witness has the burden of proving the credibility of her statement. If she fails, there is no harm done, and the law's requirement is followed. If she sustains her credibility, the question remains whether a father should go to that extreme in order to prove his defense.

Impropriety may affect the credibility of the witness and weaken the cause; it does not affect the admissibility of the testimony.

This did not give rise to a question of law.

The rules of evidence are peremptory; when they are plain and not to be misconstrued, they are controlling.

The plaintiff urges in addition that there was no foundation laid for the admission of the testimony.

There was no purpose of proving prior self-contradiction.

The charge was willingness to swear falsely -- an asserted misconduct between mother and daughter about the testimony of the latter.

That could be shown without first laying the foundation.

The decision cited by learned counsel -- Succ. of Pinard v. Holten, 30 La.Ann. 170 -- relates to the impeachment by proof of contradictory statement.

Not the case here. The testimony was tendered with the view of attacking the testimony of the daughter on the grounds above stated, which have nothing about them of going to contradict the witness.

For illustration: Had she been made to testify falsely the testimony of that fact would have been...