Poertner v. Poertner

• Decision Date: 12 October 1886
• Citation: 66 Wis. 644,29 N.W. 386
• Parties: POERTNER v. POERTNER.
• Court: Wisconsin Supreme Court

66 Wis. 644

29 N.W. 386

POERTNER

v.POERTNER.

Supreme Court of Wisconsin.

October 12, 1886.

Appeal from circuit court, Milwaukee county.

The plaintiff brought her action against the defendant, her husband, to obtain a divorce from him, alleging cruel and inhuman treatment as ground therefor. With a general denial, the defendant interposed a counter-claim for a divorce, charging the plaintiff with adultery. The issue on such counter-claim was tried by a jury, and resulted in a verdict of “not guilty.” The defendant thereupon moved for a new trial, on the grounds, among others, of newly-discovered evidence, and that the court erred in the instructions given to the jury. The challenged instructions relate chiefly to the rule of evidence in such cases. The motion was denied, and this appeal is by the defendant from the order denying the same.Weil & Killilea, for respondent, Louise Poertner.

Jenkins, Winkler, Fish & Smith, for appellant, Franklin Poertner.

LYON, J.

The character and weight of the testimony required to support a finding or verdict of guilty on an issue of adultery in an action for divorce has been somewhat discussed in several cases in this court. In Pryce v. Security Ins. Co., 29 Wis. 270, DIXON, C. J., cites cases in the opinion, with apparent approval, holding that the same degree of proof is required to sustain a charge of adultery in a divorce suit as would be required to secure a conviction on an indictment for the same offense. That action was on a policy of insurance, and the issue was whether the plaintiff had, as charged in the answer, willfully and fraudulently burned the insured building. The opinion does not determine the rule of evidence in such a case, for the reason that there was an entire want of evidence tending to show that the insured party burned the building. Both before and after that case was decided this court held that in such an issue the rule which prevails in other civil actions is applicable, and hence that a preponderance of evidence, although it falls short of proving the fact beyond a reasonable doubt, is sufficient to support a verdict against the insured, although in effect it convicts him of crime. Washington Union Ins. Co. v. Wilson, 7 Wis. 169;Blaeser v. Milwaukee M. M. Ins. Co., 37 Wis. 31. See, also, Wright v. Hardy, 22 Wis. 348;Whitney v. Clifford, 57 Wis. 156;S. C. 14 N. W. Rep. 927;Evans v. Rugee, 57 Wis. 623;S. C. 16 N. W. Rep. 49,--in which cases the same rule is applied to issues of negligence or fraud. The rule must therefore be considered as established in the classes of actions to which the above cases belong. The statement in the head-note to the above case of Washington Union Ins. Co. v. Wilson, in Vilas & Bryant's edition, to the effect that the case was overruled by Pryce v. Insurance Co., is incorrect.

Is an issue of adultery in a divorce suit an exception to the above rule? If so, what is the rule of evidence on such an issue? It has already been stated that these questions were not determined in Pryce v. Insurance Co., supra, whatever may be the drift of the opinion, or the intimations therein.

Freeman v. Freeman, 31 Wis. 235, like the present case, was an action by the wife for a divorce. The husband recriminated, alleging adultery by the wife. The issue of adultery was tried by the court, (a jury having been waived,) and resulted in a finding sustaining the charge, and a judgment granting the husband a divorce. On appeal, this court reversed such finding and judgment, because the charge of adultery appeared “to have been entirely unfounded, and to have been brought forward without the discovery or proof of any facts sufficient to justify a general suspicion, or even a well-grounded suspicion of any kind, of its truth.” Applying to that case the ordinary rule in civil actions, the finding should have been that the charge of adultery was not proved; for certainly there was no preponderance of proof sustaining it. Hence it was not necessary to determine the rule of evidence in such cases. The rule is, however, discussed at some length in the opinion by DIXON, C. J., and many of the cases bearing upon it are cited and commented upon. Undoubtedly the opinion in that case favors the application, to cases like this, of the same rule of evidence which prevails in trials on indictments or informations for the same offense. It was so understood by the present chief justice when he wrote the opinion in Blaeser v. Insurance Co., 37 Wis. 31, and he there suggests reasons why the strict rule in criminal trials should obtain in the trial of such an issue in an action for a divorce, while it does not obtain in the trial of issues of fact in civil actions which involve charges of other crimes.

This review of the cases in this court in which the question under consideration has been discussed, will show, we think, that the rule of evidence which ought to prevail in this case has not been settled and established by such adjudications. For the first time we have now before us a case in which it is necessary to declare the rule. We are quite unable to perceive any difference in principle between an issue of adultery in a divorce suit, and issues in many civil actions involving charges of other crimes. The consequences of a finding that the crime has been committed may be just as disastrous in the one case as in the other,--may even be more disastrous in the latter class of cases than in the former case. That must depend greatly, not only upon the heniousness of the crime, but upon the standing, situation, and circumstances of the party charged therewith.

The rule as to the strength and quality of testimony required to justify a finding of guilt, where the issue in a civil action involves a charge of crime other than adultery, having been established by repeated judgments of this court, we have concluded, after much deliberation, that the same rule should obtain when adultery is charged in an action for a divorce. That...