Newman v. Newman
| Decision Date | 21 May 1912 |
| Citation | 98 N.E. 507,211 Mass. 508 |
| Parties | NEWMAN v. NEWMAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Herbert L. Baker and F. Keeler Rice, both of Boston, for Wm. F newman.
John H Herley, of Boston, for libelee.
Two questions are raised, both of evidence.
1. It appeared that the libelant had previously brought a libel for divorce against the present libelee and the record showed that it had been dismissed. Nevertheless, at the hearing on this present libel, the presiding justice, against the exception of the libelee, 'permitted evidence to be introduced as to matters testified to in the former case in so far as the same might indicate an adulterous disposition on the part of the libelee.' It is urged by the libelee that by the former judgment, which was in her favor, the libelant was shut off from all further inquiry not only as to whether before the time covered by the previous libel she had committed adultery, but also whether up to that time she had shown an adulterous disposition. We do not find it necessary to consider this connection because we think that the error even if there was any, was corrected by the subsequent action of the justice, and that the libelee was not prejudiced by the admission of the evidence.
Only one act of adultery was specified in the libel, alleged to have occurred between 6 o'clock p. m. July 6, 1910, and 7 o'clock a. m. of the next day upon the high seas, on a steamboat plying between Boston and Portland. The evidence was ample to prove the allegation. The record recites that the 'court unaffected by the evidence excepted to, relative to the previous conduct of the libelee, found as a fact that the allegations of the libel were sustained.' We understand this to be in effect a statement that in coming to a conclusion the court entirely disregarded the evidence to which the libelee had objected, or, in other words, that he as judge had instructed himself as a finder of facts to disregard it, and obeying the instruction did disregard it. That being so, it does not appear that the libelee was harmed even if the evidence was wrongly admitted. This method of the trial of cases before the court without a jury, however, is not to be commended any more than in a trial with a jury. In either case it is always desirable that the trier of facts, whether he be judge or joror, should hear only what the law says he may hear. It is hard to be sure of one's self after the evidence is introduced, even if one tries to disregard it. In the present case, however, the evidence as to the adultery charged was so direct and, if believed, so conclusive, that the evidence of any prior adulterous disposition may well have been regarded as of no consequence and wholly to be set aside, as well upon the question of the credibility of the witnesses as to the adultery charged as upon the fact of its occurrence.
2. The libel recited, as is usual in this commonwealth, that the libelant always had been faithful to his marriage vows and obligations. The answer was a general denial. Several questions were asked of both libelant and libelee with the intent to show that the former had not been faithful to his marriage vows and obligations. The court ruled that any material misconduct or unfaithfulness on the part of the libelant 'would have to be specially pleaded,' and having so ruled excluded the questions, to all of which the libelee excepted.
It is to be premised that this exception in no way concerns the right of the justice as the representative of the interests of the public to make inquiries having a material bearing upon those interests, whatever may be the issues raised by the pleadings. This right cannot be affected by the pleadings of the parties. We are dealing only with the rights of the parties under the...
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