Neff v. Neff

• Decision Date: 01 June 1921
• Court: Connecticut Supreme Court
• Parties: NEFF v. NEFF.

114 A. 126

96 Conn. 273

NEFF v. NEFF.

Supreme Court of Errors of Connecticut.

June 1, 1921

Appeal from Superior Court, New Haven County; John P. Kellogg Judge.

Action by Laura M. Neff against Joseph L. Neff, in which defendant filed a cross-complaint. From a decree dismissing complaint and cross-complaint, defendant appeals. Error, and new trial ordered.

Warren F. Cressy and Justus J. Fennell, both of Stamford, for appellant.

WHEELER, C.J.

The defendant appeals from the decree of the court dismissing his action upon the cross-complaint charging adultery. He assigns as error the three conclusions to which the court came upon the facts. We cannot hold, as matter of law, that the trial court was in error in the third conclusion it drew that the facts did not warrant it in finding " as a necessary conclusion that the plaintiff had been guilty of adultery." An erroneous conclusion, drawn from subordinate facts, is an error of law, and reviewable by us. Hayden v. Allyn, 55 Conn. 280, 289, 11 A. 31. Our examination of the facts stated in the finding does not indicate that the trial court did err in this conclusion. The first conclusion reached by the trial court was that-

" To prove adultery by circumstantial evidence the circumstances must be such as to lead the guarded discretion of a reasonable and just man to the conclusion of guilt."

This is the law.

The conclusion adopted was Lord Stowell's often approved of rule of proof as found in Loveden v. Loveden, 4 Eng. Ec Rep. 461 (2 Haggard, 1). This rule, requires, as in other civil cases, proof by a fair preponderance of the evidence. And whether the proof of adultery be by what is popularly known as direct or by circumstantial evidence, the presentation of the proof is governed by the rules applicable to civil cases and the ultimate conclusion as to the adultery is dependent upon the fair preponderance of the evidence. This standard never varies, but since the severance of the marriage tie is of such serious moment to those immediately affected, and of such supreme importance to the state, whose security rests so largely upon the preservation of the family tie and of the home, the courts require that in this class of cases the trial court should be solicitous to see that the proof of the adultery is by the fair preponderance of the evidence clearly established. And then, too, in weighing the evidence of adultery, the court should exercise great care to see that it is not imposed upon through the intense interest of the parties to color the facts; it should not see evil where the circumstances may reasonably lend themselves to an innocent interpretation, nor, on the other hand, should it refuse to reach that conclusion which the sound and unprejudiced judgment should lead to. This is the meaning of the " guarded discretion" which Lord Stowell intended the trier to exercise. And when its exercise leads the trier by the fair preponderance of the evidence to the conclusion of guilt the rule of proof of the law has been satisfied. Allen v. Allen, 101 N.Y. 658, 5 N.E. 341; Thayer v. Thayer, 101 Mass. 111, 100 Am.Dec. 110; Taft v Taft, 80 Vt. 256, 67 A. 703, 130 Am.St.Rep. 984, 12 Ann.Cas. 959; 9 R. C. L. § 105; 14 Cyc. 684; 19 Corpus Juris, 138.

A few authorities have held that the circumstances must prove the fact of adultery as a necessary conclusion (Burke v. Burke, 44 Kan. 307, 24 P. 466, 21 Am.St.Rep. 283), and again occasionally it has been held that the circumstances must exclude every rational theory of innocence ( Aitchison v. Aitchison, 99 Iowa, 93, 68 N.W. 573). These decisions are against the weight of authority, which requires the same measure of proof as in all civil actions.

The second conclusion of the trial court was:

" To prove adultery by circumstantial evidence the circumstances must be such as to lead to the fact of adultery, not only by fair inference, but as a necessary conclusion, to the exclusion of every rational theory of innocence."

The conclusion is open to the criticism of the appellant that it in effect requires proof beyond a reasonable doubt, and that between the first and second conclusion there is an irreconcilable conflict. The proof of adultery required in a civil action is not that required in a criminal action.

The error into which the trial court fell cannot be held to have been harmless, since the defendant was entitled to have his cause of action determined by the measure of proof sufficient for the determination of civil actions. The exceptions to the rulings on evidence are stated in long excerpts from the stenographic notes. Our practice requires a statement of the question, answer, objection, and exception, together with a brief statement of such facts as appear in the evidence which are necessary to an understanding of the objection and ruling. The appellate court, so far as this is possible, should be put in the same position as the trial court at the time of its ruling. The failure of trial courts to follow this practice not infrequently makes it difficult for this court on appeal to understand the ruling made, and it sometimes results in denying litigants a fair consideration of their exceptions to the rulings which they desire reviewed. Practice Book, § 102, and page 266, § 5; Todd v. Todd, 84 Conn. 591, 592, 80 A. 717; Twining v. Goodwin, 83 Conn. 500, 502, 77 A. 953, Ann.Cas. 1912A, 845.

The only exception to the evidence pursued upon the appeal is the ruling refusing to permit a detective to refresh her recollection from a report. The detective testified that she had observed the plaintiff for some time, and had dictated daily reports of her observations to a stenographer in her employer's office, and that these contained many incidents on different dates. The witness testified as to these occurrences up to a certain point, and then requested permission to refresh her collection by the use of the transcript of the stenographic notes, which she said she had examined and knew to be correct. The court refused to permit this, upon the ground that the transcript had not been made by her, nor verified by her immediately after being made. At the conclusion of her testimony the request was renewed. The court again refused the request upon the ground that the report was not made by her. Its refusal was not that it would not in fact refresh her recollection. That it would appeared to be one of the accepted facts in the case. The statement of the ground of its ruling indicates that the trial court inadvertently confused the rule relating to proof of matters of present recollection with the rule relating to proof of matters of past recollection. In the latter class the witness has no recollection of the matter used to refresh his memory, but he knows upon inspection that at some former time he had knowledge of the facts of this...