Gilchrist v. Gilchrist

• Decision Date: 08 April 1952
• Docket Number: No. 95,95
• Citation: 52 N.W.2d 531,333 Mich. 275
• Parties: GILCHRIST v. GILCHRIST.
• Court: Michigan Supreme Court

Page 531

52 N.W.2d 531

333 Mich. 275

GILCHRIST v. GILCHRIST.

No. 95.

Supreme Court of Michigan.

April 8, 1952.

Joseph & Joseph, Flint, for defendant and appellant.

Frank G. Millard, Flint, for plaintiff and appellee.

Before the Entire Bench.

BUTZEL, Justice.

Plaintiff John V. Gilchrist obtained a decree of divorce from his wife Freda Gilchrist, defendant, on the ground of extreme cruelty, consisting of continued nagging and false accusations by defendant of his improper association with other women. No question is raised as to the property settlement as decreed by the trial court. Defendant appeals, claiming that the decree is not sustained by the evidence and, further, that the trial court erred in excluding alleged declarations made by certain witnesses on cross-examination for the purpose of impeaching their testimony.

While the term 'extreme cruelty' has never been defined by this court so as to cover all situations, we have repeatedly held that it may consist of constant nagging or accusations and reproaches of improper conduct of a serious nature, and particularly of improper relations with persons of the opposite sex. Stanton v. Stanton, 197 Mich. 161, 163 N.W. 873; Clark v. Clark, 199 Mich. 282, 165 N.W. 611; Mitchell v. Mitchell, 237 Mich. 317 Mich. 523, 27 N.W. Pinchuk v. Pinchuk, 317 Mich. 523, 27 N.W.2d 81; Mark v. Mark, 319 Mich. 258, 29 N.W.2d 683; and LeBel v. LeBel, 327 Mich. 318, 41 N.W.2d 881. In the instant case the real substantial testimony as to defendant's constant nagging and false accusations came from plaintiff himself. Defendant acknowledged in her answer to the bill of complaint that she had complained to plaintiff's employer in regard to such relations. The trial judge who hears the testimony may believe one party even if such testimony is not corroborated by that of third persons provided the party's testimony is credible and clearly establishes the right to relief. Murphy v. Murphy, 150 Mich. 97, 113 N.W. 583; Allen v. Allen, 188 Mich. 532, 155 N.W. 488; Brookhouse v. Brookhouse, 286 Mich. 151, 281 N.W. 573; Kolberg v. Kolberg, 321 Mich. 42, 19 N.W.2d 480. Such false accusations of the nature involved occur most frequently when third parties are not present.

Defendant sought to justify her accusations by testimony in regard to a Mrs. X with whom she alleged plaintiff had been intimate for approximately a year before the parties were separated and also after the separation. The parties had been married many years and had grown up children. There is no question but that plaintiff had enjoyed an intimate friendship with both Mr. and Mrs. X, Mr. X being presnt at all times. Defendant claims that she did not indulge in continuous nagging but admitted that after she discovered plaintiff's improper association with Mrs. X in January of 1948 that Mrs. X became the subject of many disputes. She testified that plaintiff's frequent absence from home and other circumstances may have caused her suspicions. Her own conduct may have made the home unpleasant and caused plaintiff to frequently visit the home of Mr. and Mrs. X where he was always a welcome guest. Defendant also introduced the testimony of some neighbors of the X family to prove the continued association of plaintiff and Mrs. X. The trial court to a large extent discredited the credibility of these witnesses because of his feeling that neighborhood grudges were involved and slso the inconsistency of some of the testimony. The record justifies the trial court's conclusion in this respect.

The crucial testimony was that of Mr. and Mrs. X, whom plaintiff called as rebuttal witnesses. Each testified that Mrs. X's relationship with plaintiff was a friendly and proper one that arose out of plaintiff's friendship with Mr.X. He and Mr.X both worked at the Chevrolet plant and rode back and forth together to their work. Mr. and Mrs. X categorically denied any improper intimacy with plaintiff either before or after the separation of the parties.

Testimony was adduced on behalf of both parties concerning alleged trips Mrs. X and plaintiff took together, of instances when plaintiff and Mrs. X had been seen publicly together; plaintiff's friendship with a nurse at the Chevrolet plant; and defendant's general conduct toward plaintiff. It will serve no useful purpose to review this testimony in detail. The trial court heard and saw the witnesses at firsthand and we are reluctant to disturb its findings, notwithstanding the fact that defendant disputes material facts contained therein.

During the cross-examination of Mrs. X the following questions were asked:

'Q. Do you remember making a remark to Mrs. Harris to the effect----

'Mr. Millard: Don't answer this question.

'Mr. Joseph: (continuing the question) Q. 'Have you heard the gossip about me in the neighborhood since you got back.' * * *

'Q. Did you make the statement to Mrs. Harris at that time that you were having the best time of your life?'

The court held that neither of these questions should be answered as the answer would be hearsay. Counsel for defendant, Mr. Joseph, then questioned Mrs. X as follows:

'Q. Did Mrs. Smith discuss with you * * * the reasons for the absence of (Mr. X) from your home during the summer of 1949? * * * A. No. I never discussed it with Mrs. Smith.

'Mr. Joseph: Q. You never talked to Mrs. Smith? A. No.

'Q. Did you ever tell Mrs. Smith your husband was wroking up north during weekends?

'Mr. Millard: Just a moment, I object to that.

'The Court: That is the same ruling I had on the other one.'

Defendant alleges that the refusal of the court to allow these three questions, about statements made by Mrs. X out of court to be answered, was prejudicial error.

The questions concerning witness' conversation with Mrs. Harris were not proper as they would not have had the effect, even if answered in the affirmative, of impeaching the credibility of the witness. A witness may be impeached by exhibiting the improbabilites of his story on cross-examination by showing conduct or statements inconsistent with his testimony. Shannon v. Jamestown Township, 251 Mich. 597, 232 N.W. 371. However, impeaching testimony by hearsay admissions is governed by strict rules as to relevancy, and ourht not to be received unless clearly competent. Howard v. Partick, 43 Mich. 121, 5 N.W. 84; McClellan v. Fort Wayne & B. I. Railway Co., 105 Mich. 101, 62 N.W. 1025. No matter what answer the witness gave to the two questions, it could not operate to impeach her testimony as it would be in no way inconsistent with her previous testimony. It was, therefore, not competent and the court was correct in sustaining the objection.

The question 'Did you ever tell Mrs. Smith your husband was working up north during weekends' was improper as it followed the witness' denial that she had ever discussed the subject of her husband's absence from the home with Mrs. Smith. Repetitious questions after disavowal of knowledge may properly be excluded by the trial court. Michigan Air-Line Ry. v. Barnes, 44 Mich. 222, 6 N.W. 651; Evans v. Montgomery, 95 Mich. 497, 55 N.W. 362; Wayne Probate Judge, for Use and Benefit of Voss, v. Budnick, 266 Mich. 209, 253 N.W. 270.

During the cross-examination of Mr. X, he was asked if he and his wife had had...