Gilpin v. Gilpin

• Decision Date: 19 April 1889
• Parties: GILPIN v. GILPIN.
• Court: Colorado Supreme Court

21 P. 612

12 Colo. 504

GILPIN v. GILPIN.

Supreme Court of Colorado

April 19, 1889 ^[1]

Error to superior court of Denver.

This was an action by Ex-Gov. William Gilpin, plaintiff below against his wife, formerly Mrs. Julia P. Dickerson. The parties were married in 1874. At the time of the marriage plaintiff was a bachelor, about fifty-nine years of age, and defendant a widow, about thirty-eight years of age, with four children,--one boy, about eight years old, named Sidney, and three girls, aged about four, six, and ten years respectively. By this marriage there are three children, two of them twins, Willie and Marie, born in 1875, and the third Louis, born in 1877. The plaintiff in his complaint charged that defendant had been guilty of extreme cruelty towards him from almost the beginning of their married life; that she was subject to frequent outbursts of passion and ungovernable frenzy; that she made the home circle a scene of almost continual strife; that she taught his children to hate despise, and avoid him; that she entered into conspiracies with her relatives and friends to bereave him of his children, to deprive him of his fortune, seeking to accomplish these purposes by threats, intimidation, and by declaring it to be their intention to take his life; that she had on two or three occasions violently assaulted and struck him with her hand, and with certain small weapons which happened to be at hand; that on one occasion she had caused him to be assaulted, struck, and knocked down by her son, Sidney, then about 22 years of age; and that this assault and beating was in pursuance of an arrangement between defendant, her son, and others to draw him into a quarrel, and take his life under color of self-defense. Plaintiff prayed to be divorced from defendant, and that he might have the care, custody, and maintenance of their three children. The defendant in her answer made specific denials of the acts of cruelty, and of the outbursts of passion charged against her, except as the same were provoked by the gross misconduct of the plaintiff towards herself, her children, and other members of her father's family. She also denied any intent or attempt to prejudice his children against him, or to deprive him of their society, and denied any and all combinations or conspiracies against his life, or his peace and happiness. In her cross-complaint defendant charged plaintiff with extreme cruelty towards herself and her children, specifying details of a most violent character; that plaintiff, by reason of his disordered fancy and ungovernable temper, his disposition to cruel and severe punishment, and his austere and intolerable demeanor, was unfit to have the care, custody, and tuition of the infant children of plaintiff and defendant. She therefore prayed that the care, custody, and education of said children might be decreed to her, with suitable alimony and maintenance to be paid by plaintiff, but she did not ask for a divorce. Plaintiff denied the charges made by defendant against him in her answer and cross-complaint. The pleadings are very lengthy, and no more of their substance is given in this statement than is necessary to a correct understanding of the opinion. The issue for divorce was tried by a jury, as required by statute, and determined in favor of plaintiff. A motion for a new trial on this issue was denied; and on hearing to the court, on defendant's application for alimony and the custody of the children, the court denied the same, decreed a divorce, and awarded the custody of the children to plaintiff. A subsequent application of defendant for a modification of the order touching the custody of the children was likewise denied. Defendant now brings the case to this court on writ of error, and complains that the trial court erred in receiving and in excluding testimony, in instructing the jury, in denying motion for a new trial, and in entering judgment of divorce upon the verdict; also in awarding the custody of the children to plaintiff instead of herself, and in refusing her alimony and suit money.

Wells, McNeal & Taylor and Thos. Macon, for plaintiff in error.

Markham & Dillon and Patterson & Thomas, for defendant in error.

ELLIOTT J., ( after stating the facts as above.)

The defendant below having steadfastly resisted the granting of the divorce as well as the decree depriving her of the custody of the children, the first question necessary to be considered is whether or not there was error occurring at the trial which might have affected the verdict of the jury. Plaintiff's counsel strenuously insist that this court should not disturb the verdict in a case like this; that the jury, having an opportunity to see and hear the living witnesses, are better able than the appellate court to judge of the truth of matters of fact, especially when there are a large number of witnesses and much conflict in the testimony. Whether the verdict in divorce cases is to be considered as a common-law verdict, or advisory merely, as in cases of equitable cognizance, we need not determine at this time. Chapter 32 of the General Statutes provides, among other things, that 'the * * * court, sitting as a court of chancery, shall have jurisdiction in all cases of divorce and alimony by this chapter allowed; and the like process, practice, and proceedings shall be had as are usually had in other cases in chancery, except as is hereafter provided; * * *' and that, 'where the defendant shall appear and deny the charges in the complainant's bill alleged, the same shall be tried by a jury.' Whatever may be the precise effect of a verdict in divorce cases, and whatever power the trial judge may possess over the same, we are clearly of the opinion that, when an issue is framed and submitted to a jury wherein one party charges and the other denies the commission of a matrimonial offense, the verdict returned thereon is entitled to great weight. Indeed, we are not prepared to say that under the statute it should not be held as conclusive as a common-law verdict upon the trial court as well as upon the appellate court. But it certainly is not entitled to greater consideration than verdicts in strictly common-law actions. Such verdicts, to be binding upon the courts, must be sustained by evidence and instructions free from substantial error. If competent evidence has been offered and excluded, if incompetent evidence has been admitted, or if the jury have been improperly instructed, and the party aggrieved by such rulings of the court has duly objected and excepted thereto, so that it clearly appears by the record that substantial error has been committed, the verdict should be set aside. The defendant having resisted the granting of the divorce to her husband, as well as the taking of her infant children from her care and custody, is entitled to have the rules of law by which these results have been accomplished subjected to the same critical review as in controversies concerning lands and tenements, goods and chattels, or other valuable rights.

Certain material charges against defendant in plaintiff's complaint were to the effect that she had entered into a conspiracy whereby plaintiff was called out of his house at night, assaulted, and knocked down by defendant's son, Sidney, and that defendant was present, aiding and abetting her son in that transaction. Plaintiff had testified fully upon this subject. He had sworn that, upon a sign from defendant, Sidney had struck him, and felled him to his knees, and that defendant had then called out: 'Run, Sidney; he is armed, and will kill you.' The defendant, in her answer, had specifically denied these charges; and when she was called as a witness, after giving certain testimony relative thereto, she was asked by her counsel, 'Did you say, 'Run, Sidney; he is armed?" Plaintiff's counsel objected to this question, and, the objection being sustained by the court, an exception was duly reserved by defendant's counsel. The record does not disclose upon what ground the objection was based, nor upon what ground it was sustained, and we must confess our inability to perceive any good reason for the ruling. The subject-matter of the testimony was most material. The plaintiff had given testimony in chief in regard to the matter. The exclamation of the defendant, if made, was part of the res gestoe, and tended to show that she was acting in concert with her son. To deny her the right to give her testimony in reference thereto in the amplest manner was certainly contrary to the rules of evidence, and may have greatly prejudiced her cause in the minds of the jury.

Again plaintiff had charged in his complaint that defendant had sought to poison the minds of his children against him; to make them hate, despise, and avoid him. In support of this allegation, the plaintiff was permitted to give in evidence, against the objection and exception of the defendant, a conversation between the witness, Elizabeth Owens, and the child, Willie, when the child was about eight or nine years old, on an occasion when defendant was absent from her home, when plaintiff was in another part of the house, and while the witness was putting the child to bed. The witness testified to the effect that the child said his 'papa was a thief, and everybody belonging to him, and his mamma could put them in the penitentiary; that his mamma said so.' The record does not disclose upon what ground this evidence was offered or received, and we are unable to recall any rule or exception to any rule of evidence which would allow the admission of such hearsay testimony. In its very nature, such testimony was calculated to be most prejudicial to the defendant's cause; and, since it was not legal evidence, its admission to the jury must...