Loudon v. Loudon

• Decision Date: 16 October 1933
• Docket Number: Nos. 152 and 190.,s. 152 and 190.
• Citation: 168 A. 840
• Parties: LOUDON v. LOUDON (two cases).
• Court: New Jersey Supreme Court

168 A. 840

LOUDON

v. LOUDON (two cases).

Nos. 152 and 190.

Court of Errors and Appeals of New Jersey.

Oct. 16, 1933.

Appeal from Court of Chancery.

Action for divorce by Archibald N. Loudon against Dorothy Ayres Loudon, in which defendant counterclaimed for separate maintenance. From the decree dismissing the petition, petitioner appeals, and defendant seeks to review that part of the decree dismissing the counterclaim.

Affirmed in part, and reversed in part, with directions.

John L. Ridley, of Jersey City, for appellant.

Charles A. Rooney, of Jersey City, for respondent.

PERSKIE, Justice.

This appeal brings up for review the dismissal by the Advisory Master of the husband's petition for divorce based on adultery, and also the wife's counterclaim for separate maintenance, and which counterclaim was likewise based on adultery. The facts developed are fully set forth in the conclusions of the Advisory Master (— A. —).

The primary question involved in the husband's case against the wife is whether we should feel bound, as did the Advisory Master, by the rule of law invoked by the wife, which prohibits either spouse from testifying against the other as to nonaccess, as such rule was stated by Lord Mansfield in the case of Goodright v. Moss (1777) 2 Cowp. 591 (more commonly known as the Lord Mansfield Rule).

Authorities are not in accord. In England the House of Lords (1924) in the case of Russell v. Russell, 13 British Ruling Case, 246, again followed the rule. For interesting review of this case, see article by L. A. Whitfield, 5 Australian Law Journal (1931) page 114.

In America many jurisdictions, such as Arkansas, California, Maryland, Massachusetts, Michigan, Nebraska, New Hampshire, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Texas, Wisconsin (60 A. L. R. 380, note), have steadfastly adhered to and followed the rule. In our own state the question has not been decided.

In the case of Palmer v. Palmer, 79 N. J. Eq. 496, 82 A. 358, 359, the husband filed a petition to annul the marriage upon the ground that he was under the age of consent when it was contracted. The wife filed a cross-petition setting up the fact of the birth of a child and praying that petitioner might be decreed to support it. To that cross-petition the husband answered that he was not the father of the child and was therefore not obliged to support it. The defendant offered himself as a witness to prove that he was not the father of the child. His evidence on this point was excluded upon the ground that under the circumstances disclosed in the case, it must be conclusively presumed that he was the father of the child and that he could not be allowed to disprove it. Vice Chancellor Howell held: "In my judgment, the American rule, as I shall call it, seems to be a more reasonable one. It does not prevent the admission of evidence on the subject from other sources; but it does prevent the parties from stultifying themselves and committing a fraud upon each other and upon their children. I therefore hold that it was not competent for the husband to testify as a witness to prove the illegitimacy of the child in question."

This case analyzed will disclose that the Lord Mansfield Rule—of nonaecess—while discussed, was not directly involved in the case. The exclusion of the husband's testimony was on the direct issue of the legitimacy of the child. It was an annulment proceeding and not on a petition for divorce.

In Kohlenberg v. Kohlenberg (N. J. Ch.) 74 A. 432, not reported [in State report], in an oral opinion by the late Vice Chancellor Learning, it appears that the facts and circumstances are very similar to the instant case, namely, a full-time child and no access when impregnation must have taken place. The husband's testimony of nonaecess was fully taken. Divorce was granted.

In Titus v. Titus, 128 A. 236, 3 N. J. Misc. 241, the direct question was not involved. The decision of Vice Chancellor Buchanan was based on the failure of proof and the marital offense of desertion on the husband's part.

In the case of Wallace v. Wallace, 73 N. J. Eq. 403, 67 A. 612, 613, Mr. Justice Swayze, speaking for the Court of Errors and Appeals, held: "We think the decree should be affirmed for the reasons given by the learned Vice Chancellor, but, in affirming the decree, it is not necessary to hold that the testimony of the husband was admissible to prove nonaecess to his wife. No objection was made to the reception of his testimony, but we desire to leave undecided the questions whether our evidence act makes the testimony competent as against an objection, and whether public policy permits the objection to the testimony, if valid, to be waived by the adverse party."

In the Court of Chancery, Vice Chancellor Bergen took the testimony of both husband and wife, without objection on the question of nonaecess, and decided the case chiefly on the weight of the evidence.

The question is now squarely before us. What should determine the view we should adopt? The answer is obvious. We shall adopt that view in the case at bar which we adopt in all our deliberations, namely, the one that shall lead to a righteous judgment. Such a judgment necessarily must be founded on truth, reason, and justice. A rule of law which has existed in our mother country for over 150 years and has been adopted and followed in so many of our sister states would ordinarily strongly recommend itself for our favorable consideration. But the fact that the rule is based on a foundation that is unsound and leads to the suppression of the truth and the defeat of justice takes from it the customary traditional and precedential justification urging its adoption.

It seems to us that it is a rather serious indictment against the great science of legal jurisprudence, which has for its purpose the administration of justice, to compel one who, under our judicial branch of government, is vested with the powers and duties of interpreting and administering the law, to say, in limine, "I am compelled to decide this case against what seems to be the truth of it" A law which compels such a conclusion is not only impotent and embarrassing, but is a law which, despite its tradition and universality, was never justified and should not be followed.

Great progress has been made in every field of human endeavor since 1777. Many and varied have been the changes. So has the law, from time to time, likewise undergone changes. Majestically the law always lends itself to an interpretation which results in the safeguard and preservation of human and property rights. It is because law is based on reason and justice that it ultimately triumphs. The science of the law must not merely be a pulsating and living factor, but a virile, wholesome, and ardent champion of truth and justice as well.

Professor Wigmore, in his treatise on Evidence, vol. IV (2d Ed. 1923) § 2063, vigorously assails the Lord Mansfield rule. Very clearly does he point out that:

"In the first place, it was limited strictly to filiation proceedings; it had no status as a rule of general application, for its reason had no such bearings. In the next place, the ground of the objection was that of interest, i. e. the wife was testifying to discharge the husband of the child's support; yet the objection did not in strictness apply (since the husband was not a party), and furthermore the exception of necessity (ante, par. 612) would in any event allow her testimony to intercourse with the other man. Her testimony to non-access, however, being only technically admissible within the rule of disqualification, by interest, some additional corroboration was thought essential in order to found an order; hence the doctrine of R. v. Beading (Hardw. 79) forbade such an order in Lord Hardwicke's language, where the wife was "a sole witness."

"The important feature of this rule is thus the bearing of the wife's disqualification by interest; and, when the question first comes up in the United States, the same objection is the one that occupies judicial attention,— a principle which, of course, today in most of our jurisdictions is outlawed (partly or entirely) by statute (ante, chap. 619). That the testimony as to the fact of non-access is therefore of no importance at all in this rule of R. v. Reading, except so far as the necessity-exception to the rule of disqualification by interest might not apply to that fact while it might apply to others. That the fact of non-access, of itself, was a thing not proper to be testified to, either on moral or on sentimental grounds, or that parents could not testify to illegitimacy, never for a moment occurred to these judicial expounders of the common law; and this is seen clearly enough in rulings throughout the 1700's, in other kinds of litigation, where the objection based on disqualification by interest did not arise as it did for the case of filiation proceedings.

"But, in the meantime, while these rulings were being made, came Lord Mansfield's sonorous utterance, in another part of the juristic field, that 'the law of England,' as well as 'decency, morality, and policy,' forbade a parent's testimony to non-access:

"1777, Goodright v. Moss, Cowp. 591 (ejectment; issue of the claimant's legitimacy as born after marriage of P. and M.; argued for the claimant that 'though the testimony of parents in their lifetime or their declarations after their decease might be admissible in cases where proof of the marriage was presumptive only, as by cohabitation or general reputation, yet neither their declarations nor their personal testimony (of birth before marriage) could be admitted to bastardize their"issue, where as in this case the fact of the marriage was actually proved (by the register-entry.' Mansfield, L. C. J.: 'All the cases cited are cases relative to children born in wedlock; and the law of England is clear that the declarations (or testimony on the stand) of a father or...