Feuti v. Feuti

• Citation: 92 R.I. 219,167 A.2d 757
• Decision Date: 16 February 1961
• Docket Number: No. 10153,10153
• Parties: Theresa R. FEUTI v. Michael FEUTI. Ex.
• Court: Rhode Island Supreme Court

Page 757

167 A.2d 757

92 R.I. 219

Theresa R. FEUTI v. Michael FEUTI.

Ex. No. 10153.

Supreme Court of Rhode Island.

Feb. 16, 1961.

Kirshenbaum & Kirshenbaum, Alfred Factor, Providence, for petitioner.

John Quattrocchi, Jr., Providence, for cross-petitioner.

ROBERTS, Justice.

This case was heard by a justice of the superior court on a wife's petition for absolute divorce wherein the alleged grounds for divorce were extreme cruelty and neglect to provide on the part of the husband. Also heard was the husband's cross-petition for a divorce from bed and board wherein the alleged grounds were extreme cruelty and gross misbehavior on the part of the petitioner wife. At the conclusion of the hearing the trial justice granted the wife's petition for an absolute divorce on the ground of extreme cruelty and denied and dismissed the husband's cross-petition. The case is in this court on the cross-petitioner's exception to the decision of the trial justice as well as numerous exceptions to the rulings of the trial justice on the admission and exclusion of evidence.

In order to prevail, petitioner was required to establish by affirmative, convencing evidence not only that cross-petitioner had been guilty of the extreme cruelty alleged therein but also that she herself was free from fault. Lannon v. Lannon, 86 R.I. 451, 136 A.2d 608. It appears from an examination of the transcript that cross-petitioner was attempting to show that petitioner had an illicit sexual relationship with another woman, hereinafter referred to as 'Miss R.,' and that much of the testimony adduced by him, as well as in his cross-examination of petitioner and her witnesses, was intended to be probative of that conduct on her part and thus negate her allegation of freedom from fault. It also appears therefrom that a substantial part of petitioner's testimony was designed to prove her freedom from fault by refuting the alleged illicit relationship. Most of the evidentiary exceptions being prosecuted here were taken to rulings of the trial justice on the admission and exclusion of such testimony.

A number of exceptions were taken to rulings of the trial justice sustaining objections to questions asked by cross-petitioner during his cross-examination of petitioner and her witnesses. These rulings, according to cross-petitioner, were erroneous in that they improperly restricted the scope of his cross-examination. It is well settled that the scope and extent of cross-examination is largely a matter within the control of the trial justice and his rulings thereon will be reviewed only for abuse of discretion. Mikaelian v. Mikaelian, 86 R.I. 119, 125, 134 A.2d 164; Morrison v. Bitting, 60 R.I. 325, 333, 198 A. 355. We are unable to perceive that any of the rulings of the trial justice that were the subject of these exceptions constituted an abuse of discretion. These exceptions are overruled.

Another group of exceptions was taken when the trial justice overruled objections of cross-petitioner to questions that were designed to elicit from petitioner and her witnesses a denial of any improper conduct on her part or of any illicit sexual relationship with Miss R. The cross-petitioner contends that these rulings were error in that the witnesses were thereby permitted to testify as to their conclusions as to the existence of certain ultimate facts.

When the questions involved in these rulings are examined in the context in which they appear in the transcript, it becomes clear that the witnesses, to the extent that they were stating conclusions, were basing those conclusions on their personal observation. This court has long sustained the restrictions which as a general rule are placed upon the admission of opinion evidence. See Fontaine v. Follett, 51 R.I. 413, 155 A. 363. However, in Wilson v. New York, N. H. & H. R. Co., 18 R.I. 598, 29 A. 300, this court accepted the view that a witness may testify as to conclusions reached upon observation of facts even though he has not been qualified as an expert where the subject matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time and the facts upon which the witness is called to express his opinion are such as men in general are capable of comprehending. To the same effect see White v. Alexion, 79 R.I. 297, 87 A.2d 853. This rule is well stated in Parker v. Hoefer, 118 Vt. 1, 100 A.2d 434, 38 A.L.R.2d 1216, where the court, after saying that generally witnesses are required to state facts and not to give their inferences and opinions therefrom, said that an exception is made that "where the facts are of such a character as to be incapable of being presented with their proper force to anyone but the observer himself, so as to enable the triers to draw a correct or intelligent conclusion from them without the aid of the judgment or opinion of the witness who had the benefit of personal observation, he is allowed to a certain extent, to add his conclusion, judgment or opinion." These exceptions are without merit.

The cross-petitioner also took several exceptions to rulings under which witnesses were permitted to testify that they had observed nothing immoral in petitioner's relationship with Miss R. Certain other exceptions were taken to rulings excluding testimony offered by cross-petitioner that Miss R. had made statements from which it could reasonably be inferred that she had engaged in acts of sexual perversion. The cross-petitioner appears to assume that all of these rulings constituted error, a conclusion with which we do not agree. But his contention is, as we understand it, that while standing alone these allegedly erroneous rulings are harmless, when viewed collectively they were clearly prejudicial to his case. We perceive no merit in this contention.

These particular rulings were not made in the course of a jury trial but in a proceeding where the trial justice...